Vargas and Anor and Mann and Anor

[2010] FMCAfam 20

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VARGAS & ANOR & MANN & ANOR [2010] FMCAfam 20

FAMILY LAW – Parenting – Stay application – general principles – role and duties of judicial officer – duties of counsel/advocates – `futile orders’.

Family Law Act1975, Part VII, ss.60B (2)(b), 60CA, 60CC (2)(b), 60CC (3), 60CC (3)(b)(ii), 65C, 65C (c), 65DAA

Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685
Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 137 ALR 28; (1996) 70 ALJR 603
Aldridge & Keaton [2009] FamCAFC 229
Clemmett v Clemmett (1980) 50 FLR 248; (1981) FLC ¶91-013
Commissioner of Taxation (Cth) v Myer Emporium Limited (No 1) (1986) 160 CLR 220; (1986) 64 ALR 325; (1986) 60 ALJR 300
Conway v R (2000) 98 FCR 204; (2000) 172 ALR 185
EJK v TSL (No 2) (2006) 35 Fam LR 590
Elspeth v Peter [2007] FamCA 254
Gheorghiu v Perpetual Trustees Victoria Limited [2008] HCA Trans 5 (24^th January 2008)
Gianerelli v Wraith (1988) 165 CLR 543; (1988) 81 ALR 417; (1988) 62 ALJR 611
Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2007) 232 ALR 478;
Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2008) 165 FCR 510; (2008) 244 ALR 161
In the Marriage of Lonard (1976) 26 FLR 1; (1976) 11 ALR 618; (1976) 2 Fam LR 11,116
Inwood & Barnett [2008] FMCAfam 1446
Jennings Construction Limited v Burgundy Royale Investments Pty Limited (No 1) (1986) 161 CLR 681; (1986) 69 ALR 265; (1986) 61 ALJR 102
Jones v National Coal Board [1957] 2 QB 55; [1957] 2 All ER 155
JRN & KEN v IEG & BLG (1998) 72 ALJR 1329
K & B (2006) 202 FLR 416; (2006) 37 Fam LR 1; (2006) FLC ¶93-288
MRR v GR [2009] HCA Trans 316 (3^rd December 2009)
Mullen v De Bry(2007) 36 Fam LR 501
Mulvany v Lane (2009) 41 Fam LR 418; (2009) FLC ¶93-404
Nauru Phosphate Royalties Trust v Harris [2007] HCA Trans 329 (27^th June 2007)
O v L (2005) 196 FLR 224
Potts & Bims [2007] FamCA 394

Justice D A Ipp, “Judicial Intervention in the Trial Process,” & “Reforms to the Adversarial Process in Civil Litigation – Parts I & II,” (1995) 69 ALJ 365, 705 & 790

Statement of John G Roberts JR, nominee to be Chief Justice of the United States, Senate Hearing, 12-15 September 2005.  Available at

First Applicant: MS VARGAS

Second Applicant: MR DACEY

First Respondent: MS MANN

Second Respondent: MR BLACKWELL

File Number: CAC 1485 of 2009

Judgment of: Neville FM

Date of Last Submission: 18 December 2009

Delivered at: Canberra

Delivered on: 29 January 2010

REPRESENTATION

Advocate for First and Second Applicants: Mr D Lee

Solicitors for the Applicant: Pappas. J., attorney

Advocate for First Respondent: Mr G Howard

Solicitors for the First Respondent: Farrar, Gesini & Dunn

Advocate for Second Respondent: Mr D Moore

Solicitors for the Second Respondent: KJB Law

ORDERS

1. That the Application for a stay of the Orders made on 6^th November 2009 be dismissed.

2. In the absence of any application for costs being made within 14 days, each party pay their own costs.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAC 1485 of 2009

MS VARGAS

First Applicant

MR DACEY

Second Applicant

And

MS MANN

First Respondent

MR BLACKWELL

Second Respondent

REASONS FOR JUDGMENT

A.       Introduction

1. On 6^th November 2009 I made parenting orders in relation to young [X].  The disparate parenting arrangements between the parties are set out in the judgment which I delivered on that date.  I will not repeat what is set out in those reasons.  The orders made have been appealed.  It is unknown when that appeal is likely to be heard.

2. The Orders under appeal provide for a transition in the care arrangements between Ms Vargas and Mr Dacey, who have had a significant and regular involvement in the care and welfare of [X], to his parents, Ms Mann and Mr Blackwell.  The transition is over quite a short period of time and will result, subject to anything untoward happening, and subject to review by a family consultant, in [X] being returned to his parents’ care, and Ms Vargas and Mr Dacey having relatively short regular time with him each alternate weekend.

3. A family report has been organised for 29^th March 2010, and the matter is listed to come back before me on 19^th April 2010.

4. In the [very] likely event that the appeal is not heard for some months, most of the orders under appeal will have been effected.  I will come back to this aspect concerning what might be described `futile orders’ in due course.

5. An Application in a Case was filed solely by Ms Mann on 8^th December 2009.  Perhaps curiously, it was signed by her solicitor on 23^rd November 2009.  Thus, nigh on two weeks lapsed between signing the Application and lodging it.  I draw no particular inference from the lapse in time.

6. No separate Application was filed on behalf of Mr Blackwell.  At the hearing of the stay, Mr Moore indicated that his client would basically be supporting the application of Ms Mann.[1]

   [1]

7. For the sake of the record and completeness, the Application in a Case shows Mr Dacey as both an Applicant and a Respondent.  Methinks this was not intended and that clearly Mr Blackwell should have been named in the Application. 

8. For the reasons set out in the interim judgment, and in the light of this further example, alas, attention to detail has not been a strong feature of certain parts of the proceedings thus far, not the least being, as I noted in my earlier judgment, that Ms Mann essentially put three different proposals before the Court, in relation to only one of which did Mr Blackwell apparently support.

9. For the purposes of these reasons, I will continue to refer to the parties according to the Initiating Application: thus Ms Vargas and Mr Dacey will continue to be styled as `applicant(s)’ and Ms Mann and

   
   

   Mr Blackwell as First and Second Respondents, as appropriate.

B.           Principles in Stay Applications

1. In Inwood & Barnett,[2] I referred to and discussed at some length the cases and principles that apply in stay applications.[3]  To the degree relevant, the same cases and the same principles are apposite reference points for the current proceedings.

   [2] [2008] FMCAfam 1446.

   [3] Since that judgment I have added to the list of relevant cases the earlier discussion by Kirby J in Ampolex Ltd v Perpetual Trustee Co (Canberra) Limited (1996) 137 ALR 28.

2. Beginning at [3] of that judgment, I said:

   [3] The cases might be distinguished, however, between stay applications in commercial litigation as opposed to stay applications in family law proceedings. That distinction was recognised specifically by Kirby J, sitting alone in the High Court in JRN & KEN v IEG & BLG (1998) 72 ALJR 1329.[4]  At p.1332 [16] his Honour said:

   [4] See Kirby J’s earlier consideration of similar principles in Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 137 ALR 28 at pp.31-33.

   In my opinion, some adaptation 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 a court in making an order affecting their interests.

   [4]  This distinction was recognised and accepted by the Full Court of the Family Court of Australia in EJK v TLS (No 2) (2006) 35 Fam LR 590 at 594 [17], where their Honours cited the observations of Kirby J in JRN & KEN to which I have just referred. 

   [5]  In family law stay applications, the invariable original touchstone is the judgment of Nygh J in Clemmett v Clemmett (1981) FLC 91-103.  More important recent important cases from the family law jurisdiction are O v L (2005) 196 FLR 224 (Boland J); Elspeth v Peter [2007] FamCA 254 (Benjamin J); and a decision of his Honour Altobelli FM in Mullen v De Bry [2007] 36 Fam LR 501. 

   [6]  From the non-family law jurisdiction, but which cases are not infrequently referred to in family law proceedings, are the New South Wales Court of Appeal judgment in Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 (Kirby P, Hope and McHugh JJ), Commissioner of Taxation (Cth) v Myer Emporium Limited (No 1) (1986) 160 CLR 220 (Dawson J), and Jennings Construction Limited v Burgundy Royale Investments Pty Limited (No 1) (1986) 161 CLR 681 (Brennan J).  More recent High Court discussion of the principles applicable in stay applications, almost invariably citing one or more of the cases to which I have just referred (especially Myer Emporium and Jennings Construction), can be found in Hayne J’s recent ex tempore judgments in Nauru Phosphate Royalties Trust v Harris [2007] HCA Trans 329 (27th June 2007) and Gheorghiu v Perpetual Trustees Victoria Limited [2008] HCA Trans 5 (24th January 2008).

   [7]  In the light of the jurisprudence articulated over many years the following may be taken as a summary of the principles to be applied in relation to a stay in the family law jurisdiction:

   (i)     An appeal does not, of itself, confer or require the granting of a stay as of right.

   (ii)     A stay does not constitute a “parenting order” per se and thereby immediately or directly invoke the operation of s.60CA regarding the best interests of the child being paramount.

   (iii)    The interests of the child are, nonetheless, a critical consideration.

   (iv)    The application must not be a mere delaying tactic.

   (v) The grounds of appeal must be substantial.

   (vi)    The Court must consider whether the refusal to grant a stay would render the appeal nugatory in any respect.

   (vii)   Having regard to the child’s best interests, changes to custodial arrangements in relation to the child must, as far as possible, be kept to a minimum.

   (viii)  A Court is required to assess the issue of “hardship” on each of the parties should the stay be granted or in the event the stay is refused. (See here the discussion of Boland J in O v L at pp.230-231).

   [8]  In addition to the above, for my part the most immediately relevant case that guides the determination of the current application, and not previously mentioned, is the judgment of the Full Court in K & B (2006) FLC 93-288 (Warnick, May and Boland JJ):

   The granting or refusal of a stay involves an exercise of discretion by a trial Judge.  Whilst such discretion must be exercised judicially, in cases involving children, we accept that from time to time circumstances in existence at the date of the orders, or which occur from the date of orders until the hearing of a stay application, may be very relevant matters to be considered in the exercise of discretion in determining whether or not to grant a stay.  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 orders, or significant events which have occurred after the making of those orders.

C.           Orders Sought, Submissions & Principles

1. I heard the Application on 11^th December 2009.  The first order sought in it was that `Orders 5, 6 and 7, made on 6^th November 2009, be stayed.’

2. The second order sought was to vary the time that [X] spends with

   
   

   Ms Vargas and Mr Dacey.

3. Before dealing specifically with the matters relevant to the stay application, it is necessary to deal with some of the submissions made during the hearing of the application in a little detail.  Subject to later considerations, they may be conveniently considered under two different aspects: drug testing, and non-biological “significant other persons”.[5]

   [5] Cf. s.60CC(3)(b)(ii).  Thus far in the proceedings there has not been raised any issue in relation to the standing of the Applicants to institute proceedings to seek “parenting orders.”  Indeed, in his written submissions, Mr Howard stated: “The mother agrees that the Applicants have standing under s.65C(c).”  In this regard, see the Full Court’s very recent consideration of s.65C in Aldridge & Keaton [2009] FamCAFC 229 at [23] – [28] & [54] ff.

4. By way of preliminary comment, I note that Mr Howard did not conduct, or otherwise appear at, the interim hearing.  And at the time of the stay application, my ex tempore reasons for the interim orders had not yet been reduced to writing and made available to the parties.  Thus, he was, as he readily acknowledged, dependent on information and instructions from those in his firm who had conducted the interim proceedings.  Curiously, and in many ways unfortunately, the solicitors who conducted the interim hearing were not present for the hearing of the stay application.  Perhaps it would have aided Mr Howard if they had been in attendance; they may have been able to save him from some of the matters to which I now turn.

5. Drug Testing: Accepting the above, Mr Howard submitted that it was inappropriate for the Court to have ordered his client (Ms Mann) to undergo drug testing but not to have made a similar order in relation to Ms Vargas.

6. Mr Howard also intimated that drug testing orders for Ms Mann - who confirmed to Ms Lang that she used cannabis – and Mr Blackwell – Mr Moore’s client, who is a confirmed heroin user and is undertaking a heroin rehabilitation program (although no particular details are yet before the Court in this regard) – were not apt.  Drug testing orders for both Respondents was the subject of Order 5, which was also sought to be stayed.

7. After some discussion, Mr Howard acknowledged that he had not actually read Order 6, which provided for Ms Vargas to undergo drug testing. After some further brief discussion, quite properly he withdrew the stay application in relation to that Order.

8. Although Mr Howard – appropriately - apologised to the Court for not having read at least Order 6 and made submissions in the light of that error, his admission raises one matter that is relevant to my overall consideration as to whether a stay should be granted in relation to the other order(s).  This is to say that there is some piquancy in lodging an appeal in relation to orders where the experienced solicitors who have the [current] carriage of the matter state in open court that they have not read all the orders.  Presumably such matters will be taken up in some shape or form by the Full Court.

9. Upon further discussion with the Bench, Mr Howard also withdrew the stay application in relation to Order 5.

10. For more abundant caution, I set out below the actual exchanges between Mr Howard and the Bench in relation to the withdrawal of the application in relation to both orders, as recorded in the Transcript:[6]

    [6] Transcript (11^th December 2009) pp. 13 – 15.

    HIS HONOUR:   Can I just go back to one of your earlier submissions, just to make sure that I have got it as clear as I can.  Did I understand you to say that one of the concerns that your client has with the orders and - obviously, subject to seeing them - the reasons was that there were not comparable drug testing orders in relation to Ms Vargas?

    MR HOWARD:   That wasn’t exactly how it was put, your Honour, I think, but ‑ ‑ ‑ 

    HIS HONOUR:   No, that’s what I’m saying.  I’m just trying to clarify.

    MR HOWARD:   ‑ ‑ ‑ the way I’m putting it is that your Honour didn’t give, we would say, adequate reasons for making an order that the mother be required to undertake urinalysis tests, but I would say that compounding that would be the fact that there is a similar situation for Ms Vargas and no similar order was made.

    HIS HONOUR:   Except that order 6 requires her to undertake urinalysis.

    MR HOWARD:   In that case, I withdraw that submission altogether, your Honour.  I apologise.

    HIS HONOUR:   You wonder why I’m looking a little bit, sort of, puzzled ‑ ‑ ‑ 

    MR HOWARD:   I had missed that order.

    HIS HONOUR:   ‑ ‑ ‑ when I’m getting these, you know ‑ ‑ ‑ 

    MR HOWARD:   I missed that order, but nonetheless, we would say that there is ‑ ‑ ‑ 

    HIS HONOUR:   Well, amongst other things, but in the orders sought today, orders 5, 6 and 7 be stayed.  You’re wanting me to stay orders that Ms Vargas undertake random urinalysis.

    MR HOWARD:   But with respect, your Honour, I think that - I’m not certain that it was put during the original trial that there is - that Ms Vargas’s cannabis use was such that - and nor, as I understood it, was it suggested that Ms Mann’s cannabis use was such that required urinalysis tests.  In any event, that’s not the ‑ ‑ ‑ 

    HIS HONOUR:   So do you ‑ ‑ ‑ 

    MR HOWARD:   That’s not the key part of the case, your Honour, if that ‑ ‑ ‑ 

    HIS HONOUR:   No, no, no, but in the orders sought, orders 5, 6 and 7, be stayed, are you still pressing that order 6 be stayed?

    MR HOWARD:   No, your Honour.  It’s a matter for Mr Lee.  I won’t press that.

    HIS HONOUR:   You won’t - so are you withdrawing that part of the application that order 6 be stayed?

    MR HOWARD:   Yes.

    HIS HONOUR:   Thank you.  Yes, Mr Howard.

    MR HOWARD:   Thank you, your Honour.  In summary, your Honour, in my submission there is a significant hardship for the child in, firstly, establishing or - sorry, not establishing - consolidating the bond with the mother, and strengthening the relationship with his sibling, and also the mental health issues that potentially can arise from shared care where these parties are not good candidates for shared care, and also where, even on your Honour’s long-term view of the case, as I understood your Honour to put it, the mother would be the primary carer.  And secondly, the grounds - to go back to the issue that your Honour raised recently, the grounds, in my submission, are substantial, even if your Honour were to say that that issue about the urinalysis is not, and that’s not the key part of the appeal.  That’s almost by the by on the appeal.  The rest of it are the more significant issues that are raised in the appeal.

    HIS HONOUR:   So just to go back again to the drug testing, so you say that notwithstanding your client’s admission to Ms Lang of her consumption of cannabis, it is alright for me to make an order for Mr Lee’s client to undertake urinalysis, but not for
    Ms Mann or Mr Blackwell?

    
    

    MR HOWARD:   No, your Honour, that’s not what I - with respect, that’s not what I have put to your Honour.  What I have said is that that ‑ ‑ ‑ 

    HIS HONOUR:   No, but in terms of the orders sought, order 5 - and we now know that you are not pressing order 6 because you don’t want the drug testing for Mr Lee’s client withdrawn.  You want that to stay now.  But order 5 you want stayed, where we have got Mr ‑ ‑ ‑ 

    MR HOWARD:   If it assists your Honour, I’m happy to withdraw the application for order 5 to be stayed.

1. Non-biological `significant others’:  I noted in my judgment of 6^th November 2009 that the Applicants are not related to [X] but have, nonetheless, had regular and significant involvement in his life.  Indeed, on their evidence, to a significant degree, they have been his primary carers for a very large part of his young life.

2. An issue arises, however, as to the operation and application of Part VII of the Family Law Act1975 to “non biological [or non natural] parents.”  Indeed, the Full Court has raised this directly in a recent case – Mulvany v Lane.[7]  That case is relevant to these proceedings for at least two reasons: first, because of the distinction between treating a person or persons as if they were, in fact, a parent.[8] 

   [7] (2009) 41 Fam LR 418; (2009) FLC ¶93-404.

   [8] Cf. Observations in Mulvany v Lane by May & Thackray JJ, at [78], and Finn J at [6] – [7].

3. The second point of relevance of that case to this one is the comment or question raised by Finn J.  At [15], her Honour said:[9]

   [15] It is indeed unfortunate that given the now very detailed provisions of Part VII and the acknowledgement in that Part of the important roles that persons who are not natural parents of a child can have in a child’s life (see, for example, s 60B(2)(b)), that the legislation does not give some clearer indication of the weight to be attached to the child’s relationship with a person other than his or her parent, compared with the child’s relationship with the natural parent in the determination of proceedings between a parent and a person other than a parent. 

   [16] As the legislation currently stands, and assuming that it is correct that “parent” means only a natural or adoptive parent, it would seem that in a case such as this, the court can only reach its determination in parenting proceedings on an application of s 60CC(2)(b) (protection from harm) and of the additional matters in s 60CC(3) so far as they expressly or impliedly refer to a person other than a parent.

   [9] Her Honour’s questions, observations and approach were recently sanctioned by the Full Court in Aldridge & Keaton [2009] FamCAFC 229 at [65] & [74].

1. In the course of the application before the Court I inquired of

   
   

   Mr Howard about the applicability of this reported case to the present one.  Candidly, he confessed to not knowing about it.  There is nothing untoward abut a practitioner not knowing about recent cases, even where it had been widely reported in both the Family Law Reports and in the Family Law Cases (as well as being readily available on both and the Family Court’s web site, as well as being noted in updates of standard practice services devoted to family law), and where, such as here, the Court has the benefit of specialist practitioners of long-standing before it.

2. The principal point of raising it here is because of yet another interesting and typically energetic engagement with Mr Howard.  In short, he contended that the Bench had a responsibility to provide sufficient details of a case cited or raised by the Bench in the course of argument so that counsel (or other advocate) could deal with it.  I confessed then, and do so again, to some amazement to such a submission.

3. I indicated to Mr Howard (and of course to everyone else at the Bar Table) that my job was to decide the application before the Court, not to conduct someone’s case – either in whole or in part.  It is important to explore and consider this aspect a little more.

4. Chief Justice Roberts of the United States Supreme Court put it succinctly, via sporting analogy, in the course of his confirmation hearing before the Senate Judiciary Committee in September 2005.  His Honour said: “Judges and Justices [and all other judicial officers] are servants of the law, not the other way round.  Judges are like umpires.  Umpires don’t make the rules, they apply them.  The role of an umpire and a judge is critical.  They make sure everybody plays by the rules, but it is a limited role.  Nobody ever went to a ball game to see the umpire.  ...it’s my job to call balls and strikes, and not to pitch or bat.”[10]

   [10] “Statement of John G Roberts JR, nominee to be Chief Justice of the United States,” Senate Hearing, 12-15 September 2005.  See >

   It is apt to consider – briefly of course – the role and responsibilities of a judicial officer in the light of (a) Mr Howard’s contention/submission, and (b) Chief Justice Roberts’ description of that role.

5. A classic point of reference is Denning LJ’s judgment (given on behalf of the Court: Denning, Romer & Parker LJJ) in Jones v National Coal Board.[11]  There the Court said (at p.63): “... the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large...”[12]

   [11] [1957] 2 QB 55.

   [12] See also similar and more expansive comments, ibid., at p.64.  Earlier (at p.63) he had quoted Lord Greene MR in Yuill v Yuill who had questioned the conduct of a judge who, “... so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict.”  Internal citations omitted.

6. This case from the English Court of Appeal has been applied in a number of cases in Australia, including the Family Court.[13]

   [13] See, for example, In the Marriage of Lonard (1976) 11 ALR 618 (Evatt CJ, Asche & Pawley JJ); Conway v R (2000) 98 FCR 204; (2000) 172 ALR 185 (Miles, von Doussa & Weinberg JJ).

7. There is, however, another school of thought, which proposes a more “activist” or “interventionist” role for the judicial officer that is more in keeping with modern case management practices and systems. This approach is detailed exhaustively by Ipp J in a series of articles published in the Australian Law Journal.[14]

   [14] See, Justice D A Ipp, “Judicial Intervention in the Trial Process,” (1995) 69 ALJ 365; “Reforms to the Adversarial Process in Civil Litigation – Parts I & II,” (1995) 69 ALJ 705 & 790.

8. Finally, it is sufficient to note Mason CJ’s observation in Gianerelli v Wraith: “[T]he mode of presentation of each party’s case rests with counsel.”[15]

   [15] (1988) 165 CLR 543 at p.556.

9. The above discussion does not deal directly with the submission put by Mr Howard on the [alleged] duty of the Court to provide details of a case about which the advocate addressing the Court is unaware.  The above discussion does, however, confirm the general roles and discrete responsibilities of the Bench and of advocates.  The former must efficiently manage the conduct of litigation before the Court and decide the issues presented for determination.  The latter present the facts and make submissions on them and in relation to the law to be applied on behalf of their clients.

10. In the course of the conduct of any hearing (interim, interlocutory or final) the Court may reasonably inquire of practitioners, inter alia, about the relevance or otherwise of recent cases – reported or otherwise.  The Court should allow reasonable time for practitioners to respond to such an inquiry where, as here, a case is unknown to the advocate.  In my view, however, it goes much too far to suggest that the Court has a duty to inform advocates about the detail of, for example, recent Full Court decisions that may be relevant to the current proceedings.  Indeed, accepting that there is quite some difference between a busy trial court, such as this one, which seeks to emphasise speed and a degree of informality in dealing with matters, and say the High Court, it is unthinkable that such a submission of the kind made in the current application, which would impose even more work on the Court, would be made in any superior court.

11. In my view, there is no such duty for a court to provide particulars or detail of any case raised in the course of a hearing. The only responsibility of the Court – and here it is more of a courtesy than a duty – is to inquire of counsel and those appearing in loco advocator about any particular case that may (or may not) be relevant to the issue to be determined.  It may be that if a case is likely to be of significance in the determination of a matter, and that an advocate (even a senior, specialist advocate such as here) is unaware of it, the court should give a short period of time for a brief note to be provided that addresses the decision and its relevance to the case at hand.

12. As it happens, I granted all parties leave to provide the Court with a written note (if they so wished) about the relevance or otherwise of Mulvany v Lane, and to do so within seven days.  Mr Howard did so.

13. It is time to return to the stay application proper.

14. I indicated at the hearing that, in the absence of evidence that the application was a delaying tactic, I did not need to hear the parties on that aspect.

15. I accept readily that [X]’s best interests are a significant consideration in the application, notwithstanding that it is not, per se, a parenting order that would invoke the operation of s.60CA.  However, (i) for the reasons already set out at some length in the interim judgment, (ii) because the orders provide for a gradual transition of [X] back to the care of his parents, all the while conscious of the very significant issues that Ms Mann and Mr Blackwell have to deal with (individually and as a couple), and (iii) there is to be a further family report in approximately eight week’s time, in my view, the orders made were, and remain, in his best interests.

16. As well, having regard to the principles set out earlier in these reasons in relation to applications of this kind, I am conscious to keep changes to custodial arrangements in relation to [X] to a minimum. To do otherwise would risk disrupting arrangements yet again.

17. I am conscious of the issues of `hardship’ that can arise in relation to the care and welfare of children, especially when they are young, as [X] is here.  That said, in my view, [X]’s best interests must take precedence over any issues of hardship in this instance. 

18. To state the obvious, parenthood involves sacrifice.  In this case, all parties are caught up in a contest where there are significantly disputed facts.  There are significant, but seemingly not contested, issues regarding drug use by both parents, and perhaps by one of the other parties.  Until a final hearing and further independent evidence, the Court can only do the best it can with the limited evidence before it.  That is what happened at the interim hearing, and the orders that flowed from it.  It is for the Full Court to determine whether they were in [X]’s best interests.  It is not for me to second-guess what the Full Court may or may not do.

19. One final matter should be addressed.  It relates to the principle of whether refusal to grant a stay would render the appeal nugatory.  Such a question may be also addressed from another perspective.  That is if, in the circumstances of this case, now and in the future when the appeal might be heard, to grant a stay would be a futile order?

20. I pose the question this way because, even now, the orders, to a significant degree, are both well under way and, effectively, well spent (so to speak).  By the time the appeal is likely to be heard the family conference will have taken place and everyone will have the benefit of an updated family report.  As well, the drug tests ordered will have taken place.

21. Couched in this way, to grant a stay would, in substance and in fact, amount to the Court making a futile order.  As a matter of practice (and more), courts do not (and should not) make “futile orders.”[16]  I will not say more on this aspect because it is unnecessary to do so.

    [16] More generally, see the discussion of `futile orders’ in relation to a court granting injunctive relief by the Full Court of the Federal Court in Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2007) 232 ALR 478, especially the judgment of Black CJ & Finkelstein at [14] – [16], and Moore J at [43] – [47], and the subsequent, remitted proceedings before Allsop J in Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2008) 244 ALR 161 at [49].

22. I accept Mr Howard’s submission that I do not have to be convinced of the likelihood of success of the appeal, but only that the grounds of the appeal are “substantial.”  In this regard, his submissions focussed, in large measure, on what are alleged to be appealable errors in what was then my ex tempore (now written) reasons.  They are, summarily stated, my failures to have regard (or proper regard) to (a) the recommendations of Ms Lang in her Family Report, (b) the legislative pathway set out in Goode, and (c) especially in the light of the High Court’s orders in MRR v GR,[17] the provisions of s.65DAA.  In relation to the latter, I note that the High Court decision in MRR was delivered after the interim hearing took place, and after judgment was delivered.  Of course, Mr Howard used the High Court orders in GRR to highlight the importance of a court’s consideration of s.65DAA.

    [17] MRR v GR [2009] HCA Trans 316.

23. Everyone now has the benefit of my written reasons.  For my part (unsurprisingly), it will be seen that there is significant reference to and consideration of the `statutory pathway’ as prescribed by the Full Court in Goode and in later authority.  Perhaps Mr Howard was misinformed, or (to borrow from political parlance), perhaps someone may have “mis-spoken” in their report to him as to what was, and what was not, actually in my reasons.

24. Similarly, upon further consideration of Ms Lang’s Report, I have some difficulty in seeing any other course I could have reasonably taken in relation to orders that were, and remain (in my view), in [X]’s best interests.

25. In relation to s.65DAA, in addition to the Full Court decision in Mulvany v Lane, I now also have the benefit of a differently constituted Full Court judgment in Aldridge & Keaton.  In my view, this decision has placed even more doubt on the prospects of success of the appeal.  The Full Court in Aldridge dealt at length with the application of, among other things, s.65DAA to cases where there is the involvement of non-biological persons in the life of children and where “parenting orders” are sought.  In short, as I read this new decision, s.65DAA has no application in such cases, precisely because that section only applies to “parents.”[18]

    [18] See Aldridge & Keaton [2009] FamCAFC 229 especially at [62] & [112].

26. In Aldridge, the Full Court also said, at [81]: “In some cases, which we accept are likely to be infrequent, the best interests criteria may dictate a child live with a person to whom they are not biologically related and for that person to have an order for parental responsibility.”

27. The Full Court quoted at length, and endorsed a passage from the judgment of Moore J in Potts & Bims.[19]  The Full Court said, at [112], that the passage quoted from Potts “accurately encapsulates the relevant legal principles to be applied when determining a parenting application which involves a non-parent/s.”

    [19] [2007] FamCA 394 at [8].

28. As I have said, in my respectful view, I have quite some difficulty in seeing that the arguments presented (thus far) in the appeal, especially in the light of Aldridge (as well as beforehand), can genuinely be regarded as “substantial.”

29. For the above reasons, and particularly on the facts of this case, I do not think that a stay should be granted.  Accordingly, the application is refused.

30. In the absence of an application within 14 days, I do not propose making any order in relation to costs.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Neville FM

Associate:  J. Curtis

Date:  29 January 2010  

At the hearing of the stay application, given that there is little dispute that Mr Blackwell and
Ms Mann have had not infrequent times of separation, and given that had I been previously advised that Mr Blackwell had commenced a rehabilitation program, I inquired of Mr Moore (solicitor for
Mr Blackwell) whether he was still residing with Ms Mann.  He said that he had not made those inquiries prior to the hearing.  Here, too, I draw no particular inference one way or the other in relation to the lack of evidence confirming or denying Mr Blackwell’s current place of residence and whether or not he remains in a relationship with Ms Mann.  It was unfortunate, nonetheless, that important information of this kind was not available to the Court.