West and West (No 3)
[2015] FamCA 1095
•7 December 2015
FAMILY COURT OF AUSTRALIA
| WEST & WEST (NO 3) | [2015] FamCA 1095 |
| FAMILY LAW – PARENTING – CASE APPLICATION – stay – application for stay of final orders pending appeal – application dismissed – where father sought to agitate fresh interim orders – where if stay granted orders reinstated would not be practically any different – where no basis found to grant fresh orders. |
| Family Law Act 1975 (Cth) |
| Windsor & Kava [2015] FCA 668 Aldridge v Keaton (Stay Appeal) (2009) FamCAFC 106 |
| APPLICANT: | Mr West |
| RESPONDENT: | Ms West |
| INDEPENDENT CHILDREN'S LAWYER | Mr Newman |
| FILE NUMBER: | CSC | 609 | of | 2014 |
| DATE DELIVERED: | 7 December 2015 |
| PLACE DELIVERED: | Townsville |
| PLACE HEARD: | Townsville |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 7 December 2015 |
REPRESENTATION
| THE APPLICANT: | In person |
| SOLICITORS FOR THE RESPONDENT: | Williams Family Law and Self Rep Centre |
| SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: | Newman Family Law |
Orders
The father’s Application in a Case filed 1 December 2015 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym West & West has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT TOWNSVILLE |
FILE NUMBER: CSC 609 of 2014
| Mr West |
Applicant
And
| Ms West |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
By application in a case filed 1 December 2015, the father seeks a stay of orders which I made on 8 October 2015 and seeks in their stead a fresh regime of interim orders, it would seem, pending the resolution of an appeal from my orders which he brought on 5 November 2015. The father’s application is opposed by both the mother and the independent children's lawyer.
In my judgment, I concluded that the father posed a real risk of harm to the children and that there was no benefit to the children in maintaining a relationship with him. In consequence of those findings, I determined that the children should live with the mother who should have sole parental responsibility for them, and that the father should be restrained from spending any time or communicating with the children.
The father, as I say, on 5 November 2015, brought an appeal from those orders and reasons which appeal extends to some 15 grounds.
The principles applicable to determining stay applications in circumstances such as this were conveniently and recently restated by Foster J in Windsor & Kava [2015] FCA 668 at paragraphs 26 to 33, as follows:
26. The law as to the general principles applicable to a stay pending appeal is well settled.
27. In Aldridge v Keaton (Stay Appeal) (2009) FamCAFC 106, the Full Court said at [17]-[18]:
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) HCA 40, Gronow v Gronow (1979) HCA 63 at paragraph 18.
The principles to be applied in determining an application for 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) HCA 13, Alexander v Cambridge Credit Corporation (1985) 2NSWLR 685, Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited (1986) HCA 84, Clemett and Clemett (1981) FLC 91-013, JRN and KEN v IEG and BLG (1998) 72 ALJR 1329.
28. The Full Court then said at [18]:
The authorities stressed the discretionary nature of the application which should be determined on its merits. The principles relevant to this matter include the following:
·The onus to establish a proper basis for the stay is on the applicant 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 the child’s living circumstances;
·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.
29. The Full Court at [36] referred to K & B (2006) FamCA 848, stating:
The Full Court dismissed a stay appeal where it found that the arrangements which existed for the particular child at the time of trial were not satisfactory and, therefore, the maintenance of the status quo, pending the determination of the substantive appeal, was not in the child’s best interests.
30. The Full Court at [32] explained why, in a parenting appeal, the granting of a stay to maintain a status quo is not always appropriate or the best interests of a child may dictate refusal of a stay as appropriate. Their Honours said:
The granting or refusal of a stay involves an exercise of discretion by a trial judge. While 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 the 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 the 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.
31. In Clemett and Clemett (1981) FLC 91-013, Nygh J refused the husband’s application for stay of orders pending the appeal. His Honour said at 76,175:
In determining whether a stay should be granted, the welfare of the child is the paramount consideration. It is especially desirable for the frequency of any changes in the custodial arrangements relating to the child should be limited as much as possible. If the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt with in a reasonable time and the present circumstances of the child are satisfactory, it will be appropriate to grant a stay of proceedings for at least a short period of time.
32. In EJK v TSL (2006) FamCA 806, the Full Court had the opportunity of considering what was said by Nygh J, in Clemett (supra) in the context of the subsequent enactment of the Family Law Reform Act 1995 (Cth). The Full Court at [17] said this in relation to the principles espoused in Clemett (supra):
We accept the principles espoused are relevant to this application and the child’s best interests even if not the paramount consideration, on the facts of this case, are a significant consideration.
33. The importance of the consequences for a child of the granting or refusing of stay are well recognised. In JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332, Kirby J said:
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.
Against that background, I then turn to consider the particular list of discretionary considerations enumerated in Aldridge & Keaton (Stay Appeal) (supra).
The first is the bona fides of the applicant appellant. In this case, there is no reason to doubt that the father is genuinely aggrieved by the orders which I made on 8 October 2015. There is no suggestion that he is prosecuting his appeal for anything other than a genuine desire to overturn those orders.
The second consideration relevant in this case is whether a failure to grant a stay would render the appeal nugatory. That is particularly relevant in this case because in fact the orders which prevailed prior to my orders of 8 October 2015, were made by me on an interim basis on 20 February 2015. Those orders provided for the mother to have sole parental responsibility for the children and restrained the father from communicating or attempting to communicate with the children’s schools; from attending the children’s schools or school functions; or from removing or attempting to remove or have another person remove the children from any school, institution or place when the children are attending have been or placed there by their mother.
The orders did not provide for the father to spend any time with the children and there were, as I understand it, at that time no orders permitting him so to do. Therefore, this is an unusual case in that the orders which prevailed and which would be reinstituted in the event that a stay of my 8 October orders was made, would be little different in practical terms from those which prevail presently.
Otherwise, by his application the father, it appears, wishes to prosecute a further regime of interim orders, including orders for joint custody and parental responsibility, and for the father to have the children in his care for some weeks during the forthcoming Christmas school holidays.
So, unusually, this is not a case where the stay would lead to the resurrection of orders that were materially different from those which prevailed at the time of trial. Rather, it appears as though the father wishes to use any stay as a means for agitating further interim parenting orders.
I am not satisfied that there are presently any proceedings on foot that would enable the father to, in fact, agitate for a fresh regime of children’s orders.
I then turn to the third consideration; namely, the preliminary assessment of the grounds of appeal. The notice of appeal is cast in very colourful and extreme language. Much of it is a personal attack upon myself and the family court system generally. To the extent that it alleges error of fact, there is no particularity which could enable me to discern the respective merits of those grounds of appeal.
Other grounds of appeal, which allege, for instance, that I am a Satan worshiper, do not appear to have any prospects of success whatsoever. It is unnecessary for me to descend, therefore, to a detailed analysis of any of the grounds of appeal; suffice to say that I have considered them and I cannot discern that there is any reasonable prospect enjoyed by any of them. Indeed, it may fairly be said that none of them are even presently cast as valid grounds of appeal.
The next matter for consideration is the desirability of limiting the changes which may prevail in relation to the children’s care, pending the appeal. As I have already observed, the effect of the stay would not, in fact, be to effect any practical change in the children’s regime of orders
As to the fifth consideration relevant in this case, namely, the period of time in which the appeal can be heard, it would appear likely that the appeal will come on for hearing some time next year, perhaps in the second half, more likely than the first half. But there is no reason to think that the appeal cannot be dealt with expeditiously or, indeed, if the father is of the view that there is some urgency associated with the appeal, that an application for expedition could not be brought and prosecuted by him.
The final matter relevant to this application is the best interests of the children which, of course, is a significant consideration. For the reasons which I articulated on 8 October 2015, I adjudged that the children’s best interests lay in the termination of the relationship that they had previously enjoyed with the father.
There is no new material relied upon by the father which would cause me to think that those conclusions should be undermined or eroded by subsequent events and it remains my view that the best interests of the children do indeed lie in the orders that I articulated on 8 October.
Weighing those considerations in the balance, I am satisfied that the application for a stay should be refused and I so order. Further I am not satisfied that there is any basis for me to make a fresh regime of interim children’s orders as sought by the father.
The father’s application in a case will therefore be dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 7 December 2015.
Associate:
Date: 7 December 2015
0
6
1