Wulandri and Smeeden

[2011] FamCA 1075

FAMILY COURT OF AUSTRALIA

WULANDRI & SMEEDEN [2011] FamCA 1075

FAMILY LAW - PRACTICE AND PROCEDURE - Application by mother for stay of orders pending hearing of appeal - Application dismissed

Family Law Act 1975 (Cth)

APPLICANT: Ms Wulandri

RESPONDENT: Mr Smeeden

INDEPENDENT CHILDREN’S LAWYER: Tiyce & Partners Lawyers

FILE NUMBER: SYC 7830 of 2009

DATE DELIVERED: 14 December 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 22 November 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Potkonyak

Capellia Legal

SOLICITOR FOR THE RESPONDENT:

Mr Mockler

Stewart Cuddy & Mockler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Tiyce

Tiyce & Partners lawyers

Orders

1. I dismiss the mother’s Application in a Case filed 23 September 2011.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wulandri & Smeeden has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7830 of 2009

Ms Wulandri

Applicant

And

Mr Smeeden

Respondent

REASONS FOR JUDGMENT

The proceedings

1. On 8 August 2011 I delivered judgment and made final parenting orders in respect of the parties’ child K, (“the child”), who was born on … February 2002 and is now 9 years old. 

2. The orders made on 8 August 2011 are reproduced as follows:

   (1)That all existing parenting orders in relation to the child [K] born on […] February 2002 are discharged.

   (2)2.1      That the father have sole parental responsibility for making major long-term decisions as to [the child’s] care, welfare and development.

   2.2That the father inform the mother by email of all such decisions as soon as practicable.

   (3)That each of the parties has sole responsibility for making decisions as to [the child’s] day-to-day care, welfare and development when he is in the care of that party pursuant to these orders.

   (4)That [the child] live with the father at all times other than the periods specified in order 5, during which he will live or spend time with the mother.

   (5)That [the child] live or spend time with the mother as follows:

   5.1commencing on 3 September 2011, from 10:00am until 2:00pm each Saturday

   5.2commencing on 1 October 2011, from 9:00am until 5:00pm each Saturday

   5.3commencing on 29 October 2011, from 9:00am until 5:00pm on the Saturday and Sunday of each alternate weekend until 26 and 27 November 2011

   5.4from 9:00am on Saturday until 5:00pm on Sunday on the weekends of 3 and 4 December 2011 and 17 and 18 December 2011

   5.5commencing on 29 December 2011, from 5:00pm on Friday until 9:00am on Monday each alternate weekend until the beginning of Term 1 in 2012

   5.6from the commencement of Term 1 in 2012 from the conclusion of school on Thursday until the commencement of school on Monday in each alternate week, with such time to commence in the first week of each school term

   5.7order 5.6 is suspended during school holidays

   5.8for one half of all school holidays commencing at the end of Term 1 in 2012, being the second half unless otherwise agreed by the parties

   (6)That the mother is restrained from approaching [the child] at his school or any other place or communicating with him in any way until 3 September 2011

   (7)That the father forthwith arrange for [the child] to attend upon a psychologist and provide the name and address of that therapist to the Independent Child’s Lawyer (“ICL”) within 7 days of the date of these orders.

   (8)That the mother cause [the child] to be delivered to the father within 24 hours of the date of these orders.

   (9)That the appointment of the ICL continue until 5 November 2011.

   (10)That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

   (11)That all material produced on subpoena be returned.

3. The mother filed a Notice of Appeal on 23 August 2011.  The grounds of appeal seemed to be set out in two sections of the prescribed form and read as follows: 

   1.        The single judge orders applied a wrong findings or facts on issues of me being judged as careless with the truth and prepared to direct vitriol at a number of people.  In this regard I have been discriminated by her as I am a single mother who requires an ongoing help from various government services to support me and my sons needs, especially since 2002 when I had to find away to move out from mental abused by [the father] towards three of us.  We rely on such as housing, financial support, health care, protection from abused, intimidation, bullied.  We have been assisted by approved authority and I have been consistently updated my record accordingly as required by those authority in civilised way and I follow the legal requirement as a law abiding citizen.  I am very accurate in supplying facts and evident of my life circumstances.  Even though I used to married and living in the same place with my was then husband.  He did not fully support those basic needs, I need government help to move out from u healthy life and relationship.  I have been discriminated in several numbers of her background of reasons for her judgement such as number 8.  She put her opinion as a wrong finding to prejudgment my character as being liberal with the truth.  As she wrote also a wrong finding in number 7 of her background of reasons.  When I moved in to [Mr M’s] DOH in August 2006.  I as not getting support financially, health care, and other basic spouse needs as he was still married to his ex wife [Ms M] who was looking after their kids.  I moved in to his DOH unit as a flat mate and I paid rent and we maintain finance separately.  (attached evident of Bank Statement direct debit and other papers work supporting this claim)

   2.         I have been discriminated by her in comparison to her judgement towards [the father] on item number 4.  Her unfairness is that, she stated that “immediately began an intimate relationship” with [the father] just after I broke up from [Mr G] in June 2000.  She is unfair for not taking a consideration about at that evening [the father] just drop his girl friend [Ms V] to Kingsford Smith Airport and he still expecting her back to him by looking after [Ms V] belong in his rented unit in [Sydney Suburb 2] (NOT [Sydney Suburb 1] as wrongly recorded by the single judge).  Why she did not say anything about how [the father] in “a micro second” jump to another women just after he sent off his girlfriend away?

   3.         Another unfairness from the single judge towards me again about her item number 12.  Its not true that I unilaterally terminated all of [the child’s] time with the father after day visits on 27 and 28 June 2009.  I sent an amicable emails to [the father] in regards to his breached of number 4 of our agreement from Mediation on 26 June 2009 that both party not to talk negatively about other party in the present of [the child].  But [the father] used [Ms H] to mentally abused [the child] by said that “[The child’s first name], your mother ugly like a witch”  [The child’s first name] your father do not want to abort you”.  I never raised issues about abortion before [Ms H] mentioned that word to [the child].  This is why [the child] asked her “what is abortion means”.  In that email I sent, because of my lacking in English expression, I wrote “new version or story” about abortion as I never said that word to [the child] before.  The ICL barrister questioned me and twisted around her understanding on my email.  This is another conduct breached by the court.  They did not accommodate or try to accept my language barrier in conveying my message before, during or after my cohabitation with [the father], especially during the hearing on 27, 28, 29 and 30 June 2011.  I did not get sufficient help from interpreter which I demand someone able to read Javanese alphabaet and able to speak, read, write Java and English.  I did not try to make my case difficult or complicated, but I try to treat this court case extra carefully as being very delicate matter for my life to save my under age son from his further suffer under his father hand.”

   And

   “1.       The following prime legal requirements were breached based on my time as a respondent, the orders handed down by the single judge and reading both Family Report writer [Ms S’s] and [Dr R’s] report.

   1.         The single judge applied a wrong principle of law.  Her orders were based on the legal conduct of all lawyers involved in this case and, in my opinion, she has been unfair, wrongly made prejudgement the respondent character based on misinterpretation of the respondent language barrier or being discriminated to ignore the respondent disability and her different cultural background.  The single judge orders none had acted in the best interest of both [the child] and the respondent mother.  The respondent’s lawyer and ICL were not truly independent.  The ICL lawyer being Ms Messner (Council for the Independent Children’s Lawyer) also Council being Mrs Conte-Mills.

   2.         The single judge made an error in the findings of fact.  As facts provided were either lies or total misinterpretation of events due to withheld evidence by either the applicant’s lawyer or respondent’s lawyer.

   3.         The judge Ms Stevenson (JS) exercised her discretion wrongly.  Many aspects of the case were not given proper consideration which would have led the federal magistrate to reach a different decision.

4. The mother’s application for a stay of the orders made on 8 August 2011 was supported by a considerable volume of affidavit material.  The mother swore an affidavit on 12 September 2011 which, including annexures, had a thickness of 3 centimetres.  Much of this material was of considerable antiquity.  The affidavit was replete with submissions and opinions of the deponent.  The mother also sought to revisit issues canvassed at trial in this affidavit.

5. The mother also relied on affidavits of Mr M and her adult son, Mr F, sworn on 9 September 2011 and 26 September 2011 respectively.  Mr M’s affidavit canvassed historical matters; made another attempt to explain why he provided affidavits in support of the cases of both parties; contained strident criticisms of the father and offered unfavourable commentary about the way he was questioned by counsel for the ICL and the mother at trial.  The affidavit of Mr F offered criticisms of the father, the court and the ICL and referred to historical matters.

6. The mother’s Application in a Case was listed before me on 4 October 2011.  A solicitor, Mr Potkonyak, was granted leave to appear on the mother’s behalf despite having failed to file a Notice of Address for Service. 

7. The father filed a Response to an Application in a Case on 6 October 2011, which was supported by his affidavit sworn on 4 October 2011.  The father’s affidavit referred only to events which have occurred subsequently to the orders of 8 August 2011.

8. On 4 October 2011 the application was adjourned for determination on 22 November 2011, as the mother indicated that she required a Javanese interpreter.  No request was made by or on behalf of the mother to have a Javanese interpreter available for the court listing on 4 October 2011.  I ordered that a Javanese interpreter be made available for the assistance of the mother on 22 November 2011.

9. Subsequent to that order confirmation was received from the National Accreditation Authority for Translators and Interpreters Ltd that there is no accredited Javanese interpreter in Australia.  Consequently, an accredited Indonesian interpreter was arranged for the listing on 22 November 2011.

Relevant Events Since the Orders of 8 August 2011

1. The orders of 8 August 2011 provided for an immediate change in residence from the mother to the father.  The handover in fact took place on 15 August 2011 at the child’s school, only after intervention by the ICL. 

2. The father deposed that the child was “a little tearful” when he first collected him on 15 August 2011 but that he had settled by the time they reached his car.  The father deposed further that the child has since shown no distress in his care. 

3. In accordance with the orders the father arranged for the child to consult a psychologist.  The first appointment took place on 23 August 2011 and the father was advised that frequent consultations were unnecessary.  The next appointment was arranged for 27 September 2011 and the father deposed that he intends for consultations to occur on a monthly basis in the future.

4. The father has re-enrolled the child at School 1, where he has resumed friendships which he enjoyed previously.  The father deposed that he has encouraged the child to participate in school based activities.

5. The father deposed that he and his partner Ms H separated in early September 2011 but remain in regular communication and continue to see each other.  He hopes that they will reconcile when this litigation finally comes to an end.

6. At the commencement of the hearing of the stay application I re-appointed Mr Tiyce, solicitor, as Independent Child’s Lawyer for the child.  It seemed to me to be appropriate to take this step because of his previous involvement, which included securing a change in residence pursuant to the orders.

Consideration

1. If the mother’s appeal is successful, there is nothing to prevent the child being placed in her primary care.  It is thus the case that a refusal to grant a stay will not render her appeal nugatory.

2. The orders of 8 August 2011 provide that the child spend time with the mother regularly.  From the beginning of December 2011 that time will be from 9:00am on Saturday until 5:00pm on Sunday each alternate weekend.  This time will increase to Thursday afternoon until Monday morning in each alternate week at the commencement of Term 1 in 2012.

3. There is thus no basis to infer that the relationship between the child and the mother will be undermined or impaired if there is no stay of the orders of 8 August 2011.  In fact, the mother’s lawyer stated that she would be “happy for week about pending the appeal”. 

4. I was somewhat at a loss to reconcile this position put on behalf of the mother in support of the stay application with the fact that, in the event of a successful appeal, she sought orders for sole parental responsibility; primary residence with her and time with the father only as requested by the child from time to time.  It was a particular challenge to reconcile the mother’s proposal for an interim week about arrangement with the fact that she sought these orders in the event of a successful appeal: 

   7.        The father is restrained from approaching [the child] at his school or any other place or communicating with him in any way until he has been assessed by independent psychologist and psychiatrist that he is harmless for [the child] to be around him regarding the allegations of abused, neglect and molestation.

   8.         The father is restrained from allowing the child to consume alcohol whilst he is in his care.

   9.         The father is restrained from participating in overtly sexual behaviour in the presence and/or hearing of the child.”

5. It was difficult to discern the legal basis for the mother’s grounds of appeal and thus to express any opinion as to the merits thereof.  I do recognise that the mother prepared the Notice of Appeal herself and that she has the right to seek leave to amend her grounds with the benefit of legal advice. 

6. As noted, judgment was delivered and orders were made on 8 August 2011.  The application for a stay was filed on 23 September 2011 and no explanation was offered for this delay.  The consequence is that the child has now lived in the primary care of the father for almost four months.  There was no independent evidence that he is distressed or unhappy in the present circumstances.

7. In my view there is a real risk that a stay of the orders would be destabilising for the child after that length of time in the care of the father.  I would note that, at the time of the trial in late June 2011, the child had spent no time with the father for approximately two years.  It appears that he has adjusted to this change in circumstances.

8. In my view, there is also a real risk of destabilisation of the child if a stay is granted conditionally upon an interim week-about arrangement.  This change would be a significant departure from the child’s present circumstances and another substantial adjustment would be required of him, whatever the outcome of the appeal. 

9. I am in no doubt that the mother has bona fides and is not attempting delay by way of her appeal.  The fact is, however, that the change in residence had occurred before she filed the Notice of Appeal and her stay application came some five weeks after the child moved into the care of the father. 

10. I have no evidence or information as to when the mother’s appeal may be heard.  In my view it was incumbent upon her and those who advised her to furnish this information, which clearly was relevant for present purposes.

11. For all these reasons, and in the exercise of my discretion, I dismiss the mother’s Application in a Case filed 23 September 2011.

I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 14 December 2011.

Associate:     

Date:              14 December 2011