Wagner and Baier
[2009] FMCAfam 782
•31 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WAGNER & BAIER | [2009] FMCAfam 782 |
| FAMILY LAW – Mother’s application for a stay of interim orders pending the hearing of her appeal – mother seeking a stay on terms – mother now willing to return to Darwin pending a final hearing – whether it would be preferable for the mother to file a fresh interim application. |
| Family Law Act 1975, r.22 |
| Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 |
| Applicant: | MS WAGNER |
| Respondent: | MR BAIER |
| File Number: | DNC 216 of 2009 |
| Judgment of: | Terry FM |
| Hearing date: | 15 July 2009 |
| Date of Last Submission: | 15 July 2009 |
| Delivered at: | Darwin |
| Delivered on: | 31 July 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Glover |
| Solicitors for the Applicant: | Legal Rite Solicitors |
| Counsel for the Respondent: | Mr Black |
| Solicitors for the Respondent: | Cecil Black Family Lawyers |
ORDERS
That the mother’s application for a stay filed on 8 July 2009 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Wagner & Baier is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNC 216 of 2009
| MS WAGNER |
Applicant
And
| MR BAIER |
Respondent
REASONS FOR JUDGMENT
Introduction
The mother has filed a Notice of Appeal in respect of an interim parenting decision made on 3 July 2009. She has applied for a stay of the orders pending the determination of the appeal.
Background
The mother and father separated in Darwin on 2 March 2009. Less than a week later the mother relocated to Melbourne with [X], without the father’s consent.
On 13 May 2009 the father filed an application for parenting orders. It was essentially his case that [X] should live in Darwin. The orders he sought on both a final and interim basis were that [X] live with him and spend substantial and significant time with the mother. In the alternative he sought orders that [X] live with the mother and spend substantial and significant time with him.
On 24 June 2009 the mother filed a response. It was essentially her case that [X] should live with her in Melbourne. The mother sought final orders that [X] live with her and spend supervised time with the father.
On 29 June 2009 an interim hearing was conducted. At the commencement of the hearing, the mother’s counsel said as follows:
“MR NORRINGTON: Your Honour, I note the response that was prepared by the instructing solicitor doesn’t actually detail any interim orders that are being sought by the respondent; it only seeks final orders. I clarified this morning with the client as to what it was that she was seeking. Firstly, she has indicated to me that – and her instructions are different to that of the response – she’s indicated that she doesn’t wish to seek that the father has supervised contact. She’s happy for the father to have unsupervised contact should he travel to Melbourne to spend time with [X]. And the mother’s position is that she would like to remain in Melbourne with the child and she made it abundantly clear to me that – and I’ll address that in my submissions in the affidavit – that her intention is to remain in Melbourne regardless of the orders that the court makes. If the court orders that the child return to Darwin she asks that the child live with the father and she’ll seek, on a final basis that the child live with her in Melbourne.”
On 3 July 2009 orders were made that [X] live with the father pending a final hearing. It was further ordered that within seven days the mother deliver the child to the father, so that the father could return with the child to Darwin.
Events following the interim decision
After the decision was handed down the father travelled to Melbourne to collect [X]. The mother refused to hand the child over to him. On 8 July 2009 the mother filed an application for a stay of the interim orders. On 9 July 2009 she filed a Notice of Appeal.
In the affidavit filed in support of her stay application the mother said as follows:
“… pending the determination of the Appeal and indeed pending the final hearing of all applications concerning the parenting of [X] I am prepared to return to Darwin and implement an arrangement taking into account the father’s proposal set out in paragraph 7 of Attachment A annexed to his application filed 13 May 2009 and the age of [X] (19 months) and the fact that she has not spent time alone with the Respondent overnight.”[1]
[1] Mother’s Affidavit filed 8 July 2007 paragraph 5
The mother sought a stay on the following terms:
·that she return [X] to Darwin within 7 days of confirmation from a medical practitioner that [X] was able to fly. It was the mother’s case at the time she filed her affidavit that [X] was suffering from otitis media and was unable to fly;
·that she be restrained from relocating the child’s residence from Darwin pending determination of the final hearing of all applications concerning the child;
·that until further order [X] live with her;
·that [X] spend time with the father each Tuesday and Thursday from 4.30pm until 7.30pm and each Saturday from 10.00am until 5.00pm, on Father’s Day and the child’s birthday and at any other times agreed between the parties;
·that until further order she have sole occupancy of the former matrimonial home in [L];
·that the father pay the mortgage and rates for the home;
·that changeover be at the mother’s home or such other place as the parties agree.
The father sought to have the stay application dismissed. In the alternative he proposed that if the stay was granted, he should be given liberty to apply to the court if he and the mother were unable to reach an agreement, after consultation with [X]’s ENT Specialist, about the timing and method of [X]’s return to Darwin. [X] had an appointment to see an ENT Specialist in Melbourne on 27 July 2009.
The father is suspicious of the mother’s claim that [X] is unable to fly. He has offered to bring [X] back to Darwin by car, but the mother is opposed to that course.
The mother’s application for a stay first came before me on 10 July 2009. The parties sought an adjournment. They consented to orders that the father spend time with the child in Melbourne:
i)from 10.00am until 5.00pm on Saturday 11 July 2009;
ii)from 2.00pm on Sunday 12 July 2009 until 10.00am on Monday 13 July 2009;
iii)from 3.00pm on Tuesday 14 July 2009 until 3.00pm on Wednesday 15 July 2009.
The stay application was argued on 15 July 2009. After hearing submissions I reserved my decision. The father was due to return to Darwin on Sunday 19 July 2009 and he sought orders permitting him to spend two additional periods of time with the [X] in Melbourne prior to his return to Darwin.
The mother consented to this proposal in broad general terms but while the father sought further periods of overnight time the mother proposed that the time be during the day only. I made orders that the father spend time with the child:
i)from 3.00pm on Thursday 16 July until 3pm on Friday 17 July and
ii)from 3.00pm on Saturday 18 July until 3.00pm on Sunday 19 July 2009.
The applicable law
The filing of an appeal does not operate as a stay. However pursuant to r.22.11 (2) of the Family Law Rules a party who has lodged an appeal may apply for a stay.
In Aldridge & Keaton (Stay Application) [2009]FamCAFC106 the Full Court discussed the approach to be taken when considering a stay application and said as follows:
“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.
Discussion
Some of the mother’s grounds of appeal (such as the claim that I erred in law in changing the child’s residence on an interim basis or that I displayed bias against the mother as a result of her relocating the child from Darwin) seem to have no or negligible prospects of success. A number of the grounds of appeal are complaints about the weight given to various considerations.
The father’s counsel in his written submission demonstrated persuasively that the findings made in the interim decision were underpinned by the evidence given and the submissions made at the interim hearing.
The mother’s counsel while insisting that the mother’s appeal had prospects of success conceded that these prospects were at the bottom end of the range.
The mother is of course at liberty to pursue her appeal but the better course may be for the mother to file a fresh interim application in the light of changed circumstances.
Some of the matters raised by the mother in her application for a stay on terms cannot be properly dealt with in any event on the basis of the evidence currently available.
For example, the mother proposed that [X] live with her in Darwin and spend time with the father during the day only. She sought orders not only that she have sole right to occupy the former matrimonial in Darwin but that the father pay the mortgage and outgoings on home.
The mother’s affidavit does not contain evidence directed to the issue of who should make the payments for the former matrimonial home. She has also not yet given any evidence about how [X] fared during her recent overnight visits with the father in Melbourne.
The father did not file an affidavit in the stay proceedings and he did not provide any evidence about these issues either.
It seems inevitable that unless the parties can reach some agreement in due course, further proceedings will be necessary to iron out the details once the mother returns to Darwin. When pared right back the real issue which confronts me is whether the mother or the father should have the opportunity to bring [X] back to Darwin.
I accept that the mother has always been [X]’s primary (although not her only) carer. I accept that frequent changes of residence are not desirable. I do not however accept that [X]’s attachment and relationships with her mother will be “prejudiced and at risk”[2] simply because [X] is accompanied back to Darwin by her father or simply because she lives with him for a short period of time pending thee hearing of an fresh interim application filed by the mother.
2 Mother’s affidavit filed 8 July 2009 paragraph 4(b)
If the mother does bring a fresh interim application it could be heard on an expedited basis, in days if necessary rather than in weeks or months.
The tension in this matter surrounds [X]’s continued residence in Melbourne. The sooner that [X] returns to Darwin the better and if this needs to be achieved by the father bringing her here by car, I can see no reason why this should not occur. There is a real possibility that once [X] is back Darwin that the parents in the best interests of their daughter may be able to reach an agreement about interim parenting arrangements.
For all of the above reasons I intend to dismiss the mother’s application for a stay.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Terry FM
Acting Associate: Barbara Cameron
Date: 31 July 2009
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