Renaldo & Decora (No.2) [2020] FCCA 3095 (2 November 2020)

Last Updated: 8 December 2020

FEDERAL CIRCUIT COURT OF AUSTRALIA

RENALDO & DECORA (No.2)

[2020] FCCA 3095

Catchwords: FAMILY LAW – Interim parenting – relocation – application for stay of orders pending appeal – consequential parenting orders.

Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 Goode & Goode [2006] FamCA 1346 MRR v GR [2010] HCA 4

Applicant:

MS RENALDO

Respondent:

MR DECORA

File Number:

BRC 9004 of 2020

Judgment of:

Judge Altobelli

Hearing date:

22 October 2020

Date of Last Submission:

22 October 2020

Delivered at:

Wollongong

Delivered on:

2 November 2020

REPRESENTATION

Counsel for the Applicant:

Ms Black

Solicitors for the Applicant:

Clarity Family Law Solutions

Counsel for the Respondent:

Ms Finemore

Solicitors for the Respondent:

Coulter Roache Lawyers Pty Ltd

ORDERS PENDING FURTHER ORDER

(1) Pending the determination by the Full Court of the Family Court of the Notice of Appeal filed in this matter, Orders 3, 4, 5, 7, 15, 17 and 18 of the Orders made 10 September 2020 (as amended on 21 September 2020) be stayed.

(2) If the Father is living on the Region G or Region H, New South Wales and there is no restriction on travel between these areas such as to make these Orders impracticable and further provided the Father has suitable accommodation, then the children X (born in 2011) and Y (born in 2012) (‘the children’) live with each parent in each fortnight commencing on 20 November 2020 as follows:

(a) With the Father from after school on Friday in the first week until before school on Friday in the second week;

(b) With the Mother from after school on Friday in the second week until before school on Friday in the following week.

(3) If the Father is not living on the Region G or Region H, New South Wales or the restrictions on travel between these areas make the implementation of these Orders impracticable or if the Father does not have suitable accommodation, the children live with the Mother and spend time with the Father (subject to any Covid-19 restrictions) as follows:

(a) Unless otherwise agreed, in writing, one weekend each month from after school on Friday to before school on Monday, providing the following occur:

(i) The Father provides the Mother written notice of no less than 14 days of the dates he wishes to spend time with the children in accordance with Order 3;

(ii) The Father provides the Mother with written notice of the address that the children will be staying at during his time with them; and

(iii) This time is to occur on the Region G or in Region H of New South Wales.

(4) In the event the Father indicates that he will spend time with the children in accordance with Order 3 above and subject to any relevant COVID-19 restrictions;

(a) The costs of the Father’s air travel (if any) in relation to this time is to be borne equally by the parents; and

(b) The costs of the children’s air travel (if any) in relation to this time is to be borne solely by the Mother.

(5) The children spend time with the parents on special occasions as follows:

(a) The children spend time with the Father for one half of all gazetted school holiday periods, being the first half in odd numbered years and the second half in even numbered years;

(b) The children spend time with the Mother for one half of all gazetted school holiday periods, being the second half in odd numbered years and the first half in even numbered years;

(c) That in all even numbered years:

(i) The children spend time with the Father from 12:00pm on Christmas Eve until 12:00pm on Christmas Day; and

(ii) The children spend time with the Mother from 12:00pm on Christmas Day until 12:00pm on Boxing day;

(d) That in all odd numbered years:

(i) The children spend time with the Mother from 12:00pm on Christmas Eve until 12:00pm on Christmas Day; and

(ii) The children spend time with the Father from 12:00pm on Christmas Day until 12:00pm on Boxing day;

(e) The children spend time with the Father from 9:00am – 5:00pm on Father’s Day;

(f) The children spend time with the Mother from 9:00am – 5:00pm on Mother’s Day; and

(g) The children spend equal time with the Mother and the Father on the children’s birthdays at times to be agreed between the parties, and failing agreement, the children shall spend time with the Father from 3:00pm – 7:00pm on those birthdays and the Mother at all other times on those days.

(6) The costs of the children’s air travel (if any) during any gazetted school holidays in relation to Order 5 above be borne solely by the Mother.

(7) Within 21 days, both parents are to make a joint application to the Family Court of Australia to request the expedition of the hearing of the Notice of Appeal filed by the Mother relating to the Orders made by His Honour the late Judge Andrew on 10 September 2020 (as amended on 21 September 2020).

THE COURT FURTHER ORDERS THAT:

(8) The proceedings are transferred to the Family Court of Australia at Brisbane to be listed for Directions before a Registrar on a date to be fixed.

IT IS NOTED that publication of this judgment under the pseudonym Renaldo & Decora (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG

BRC 9004 of 2020

MS RENALDO

Applicant

And

MR DECORA

Respondent

ORAL REASONS FOR JUDGMENT

1. These Reasons for Judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Introduction

2. This case is about two children, X, born in 2011 who is 9 years old, and Y, born in 2018 who is 8 years old. The children currently live with their mother but are not spending time with their father, despite orders of the Court that reflect an entirely different parenting arrangement. This matter was heard in Brisbane before his Honour the late Judge Andrew. One of the orders made by his Honour included the matter being transferred to the Wollongong Registry of this Court. His Honour’s orders will be discussed in more detail presently.
3. On 5 October 2020 the Father filed an Application in a Case in which he sought a recovery order so that the children could be returned to his care, consistent with the Orders made. On 7 October 2020 the Mother filed an Application in a Case to stay the orders made by the late Judge Andrew, in circumstances where she had filed a Notice of Appeal to the Full Court of the Family Court, also on 7 October 2020. The issue for the Court, therefore, was whether a recovery order should be made, thus in effect, enforcing the Orders currently in place relating to the children, or whether in the alternative the Court should stay the Orders made, pending the determination of an appeal.
4. As will be seen there were important consequential issues about what parenting arrangement should be implemented should the stay be granted, pending the appeal. The Court proposed, and the parties agreed, that it should deal with the stay application first and then only proceed to consider the recovery application if the stay were not granted. The current parenting Order was made on 10 September 2020 by his Honour the late Judge Andrew on an interim basis following an Interim Hearing that occurred on 9 and 10 September 2020.
5. The Court did not have the benefit of the Court file. Nor did the parties adduce as evidence before me the evidence before his Honour. His Honour provided extemporaneous Reasons for Judgment. His Honour later died. His Chambers subsequently produced written Reasons for Judgment and it is not clear who settled these Reasons and whether they are complete. The concerns about the completeness of the Reasons are evident from, for example, paragraph 26 of the Reasons;
   • [26] If the parents do not live in the same location, that is in Town B, it seems to me that the boys would live with their father, and I would so order, and they would have as much time as reasonably practicable as they could with their mother. I will deal with that shortly, and I will need some submissions – please short – with respect to that, because there is a lacuna in terms of assistance with respect to the proposition.
6. Here His Honour dealt with what is one of the critical issues in the present litigation. That is, the parenting arrangements should the parents not be able to live in the same location. The present situation is that the Father seems to be living in the home of the maternal grandfather in Town B, New South Wales, with the Mother and the children living on the Region G in Queensland. As will be seen, His Honour made Orders but one of the concerns raised in the Mother’s case, indeed a concern shared by this Court, is whether the Reasons adequately explain the Orders that the Court made.
7. In circumstances where the children have been living with their mother on the Region G in Queensland for some period His Honour ordered in effect that the children live with their father in Town B, New South Wales, a place where they have not lived for several years and a location that the Father had only just moved to. This was in Order 3. Order 4 provides that if both parents are living in New South Wales then there would be an equal shared care arrangement on an alternating week basis. Order 17 provides that if the Mother was unable to return to Town B then the parents would meet on the New South Wales/Queensland border to effect changeover once the mandatory COVID-19 related quarantining period had been satisfied. Order 18 provides that if the Mother is not living in Town B she was to provide to the Father 14 days’ notice of her intention to travel to New South Wales, and the Father facilitate the children spending time with her for a period of one week.
8. A number of concerns were raised on the Mother’s behalf about these Orders relevant to the stay application. Perhaps the major concern was the practicality of implementing an equal shared care arrangement in circumstances where the parents might be living in the same State, but nonetheless a significant geographical distance apart from each other.
9. The Court takes judicial notice about the geographical size of both New South Wales and Queensland. The Court accepts the impracticality of an equal shared arrangement, even on a week about basis, if the Mother continued to reside on the Region G of Queensland and the Father resided in, just as an example, City J. The next major concern raised about the Orders was that the Reasons do not explain how His Honour considered that the Orders made were, to use the wording in paragraph 26 “reasonably practicable.” Implicit in the concerns raised by the Mother about His Honour’s Reasons is the concern that they do not adequately explain how it is in the best interest of the children that they only have time with their mother for periods of up to one week and only if she travels to New South Wales.

The evidence before the Court:

10. In the Mother’s case she relied on the following documents:
    1. Initiating Application filed 13 July 2020;
    2. Affidavit of Ms Renaldo affirmed 5 September 2020 and filed 6 September 2020;
    100. Affidavit of Ms Renaldo filed 7 October 2020;
    4. Application in a Case filed 7 October 2020;
    5. Response to an Application in a Case filed 7 October 2020;
    6. Notice of Risk filed 13 July 2020; and
    7. Amended case outline document filed 21 October 2020.
11. In the Father’s case he relied on the following documents:
    1. Response filed 1 September 2020;
    2. Affidavit of Mr Decora affirmed 1 September 2020 and filed 1 September 2020;
    100. Affidavit of Mr Decora filed 5 October 2020;
    4. Application in a Case filed 5 October 2020;
    5. Notice of Risk filed 1 September 2020; and
    6. Case outline document filed 15 October 2020.
12. The following material was tendered as evidence during the course of the proceedings:
    1. Bundle of correspondence between the Applicant’s Solicitor and the Respondent’s Solicitor; and
    2. Reasons for Judgment of the late Judge Andrew released on 19 October 2020.

The applicable law

13. The applicable law relating to the stay application as found in the Full Courts judgements in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 (hereafter referred to as ‘Aldridge & Keaton’), and in particular paragraph 18:
    • [18] The principles to be applied in determining an application for a 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; (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited [1986] HCA 84; (1986) 161 CLR 681; Clemett & Clemett [1980] FamCA 90; (1981) FLC 91-013; JRN & KEN v IEG & BLG [1998] HCATrans 263; (1998) 72 ALJR 1329 at 1332). 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.
14. The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
15. The objects and principles of Part VII are set out at s.60B:
    • 60B Objects of Part and principles underlying it
    • (1) The objects of this Part are to ensure that the best interests of children are met by:
      • (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
      • (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
      • (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
      • (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
    • (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
      • (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
      • (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
      • (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
      • (d) parents should agree about the future parenting of their children; and
      • (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
    • (3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
      • (a) to maintain a connection with that culture; and
      • (b) to have the support, opportunity and encouragement necessary:
        • (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
        • (ii) to develop a positive appreciation of that culture.
16. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
    • 61DA Presumption of equal shared parental responsibility when making parenting orders
    • (1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
    • (2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
      • (a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
      • (b) family violence.
    • (3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
    • (4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
17. If the presumption applies, the Court is required to consider certain things:
    • 65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
    • Equal time
    • (1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
      • (a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
      • (b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
      • (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
    • Substantial and significant time
    • (2) If:
      • (a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
      • (b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
    • the court must:
      • (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
      • (d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
      • (e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
    • (3) will be taken to spend substantial and significant time with a parent only if:
      • (a) the time the child spends with the parent includes both:
        • (i) days that fall on weekends and holidays; and
        • (ii) days that do not fall on weekends or holidays; and
      • (b) the time the child spends with the parent allows the parent to be involved in:
        • (i) the child’s daily routine; and
        • (ii) occasions and events that are of particular significance to the child; and
      • (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
    • (4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
    • Reasonable practicality
    • (5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
      • (a) how far apart the parents live from each other; and
      • (b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
      • (c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
      • (d) the impact that an arrangement of that kind would have on the child; and
      • (e) such other matters as the court considers relevant.
18. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
    • Determining child's best interests
    • (1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
    • Primary considerations
    • (2) The primary considerations are:
      • (a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
      • (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
    • Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
    • (2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
    • Additional considerations
    • (3) Additional considerations are:
      • (a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
      • (b) the nature of the relationship of the child with:
        • (i) each of the child's parents; and
        • (ii) other persons (including any grandparent or other relative of the child);
      • (c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
        • (i) to participate in making decisions about major long-term issues in relation to the child; and
        • (ii) to spend time with the child; and
        • (iii) to communicate with the child;
      • (ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
      • (d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
        • (i) either of his or her parents; or
        • (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
      • (e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
      • (f) the capacity of:
        • (i) each of the child's parents; and
        • (ii) any other person (including any grandparent or other relative of the child);
      • to provide for the needs of the child, including emotional and intellectual needs;
      • (g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
      • (h) if the child is an Aboriginal child or a Torres Strait Islander child:
        • (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
        • (ii) the likely impact any proposed parenting order under this Part will have on that right;
    • (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
    • (j) any family violence involving the child or a member of the child's family;
    • (k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
      • (i) the nature of the order;
      • (ii) the circumstances in which the order was made;
      • (iii) any evidence admitted in proceedings for the order;
      • (iv) any findings made by the court in, or in proceedings for, the order;
        • (v) any other relevant matter;
    • (l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
    • (m) any other fact or circumstance that the court thinks is relevant.

The case law

19. In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
    • 9. Each of sub-section (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
20. A little later in the judgment the High Court said:
    • 13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
21. At [15] the High Court emphasised the need for a practical approach:
    • 15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
22. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
    • 68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
    • ...
    • 72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
    • ...
    • 82. In an interim case that would involve the following:
      • (a) identifying the competing proposals of the parties;
      • (b) identifying the issues in dispute in the interim hearing;
      • (c) identifying any agreed or uncontested relevant facts;
      • (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
      • (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
      • (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
      • (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
      • (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
      • (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
      • (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

The stay application

23. The Court will deal with the stay application first, using the principles referred to by the Full Court in Aldridge & Keaton. Both Counsel very helpfully addressed each of these principles.
24. It was accepted that the Applicant Mother bore the onus of proof in order to establish a proper basis for the stay. It was accepted that it was not necessary for her to demonstrate any special or exceptional circumstances. The Mother submitted that she had discharged the onus, the Father submitted that she had not. Ultimately the Court decides that she has discharged the onus for reasons which will become apparent shortly.
25. The Father submitted that he is entitled to the benefit of the Judgment and Orders made by His Honour the late Judge Andrew. The principle is beyond doubt, but it is just one factor for the Court to consider in the highly unusual, indeed tragic, circumstances of this case. There are doubts about the completeness of the Reasons provided.
26. The Father submitted that he is entitled to presume that the Judgement of his Honour was correct. That principle is also beyond doubt. But this too is just one factor for the Court to consider. The principle must be applied in the context of highly unusual circumstances where there are some doubts about the completeness of the Reasons.
27. Both parties agreed that the mere filing of an appeal is not, ipso facto, a reason to grant a stay.
28. It is relevant to consider the bona fides of the Applicant Mother. The Father contends that the Mother has not acted in a bona fide manner. A stay application is usually treated as an interim application determined on the papers and with the benefit of submissions from learned Counsel, as was the case here. It is impossible to even form an impression, let alone find, anything about the bona fides of the Mother. The Court understands that the Father would currently mistrust the Mother of his children, but his mistrust cannot be allowed to cloud the Court’s determination about whether to grant a stay. It is true that the Mother has failed to comply with orders. It is patently obvious that she does not accept the Orders made in relation to the further interim arrangements for the children. Those matters do not lead to any form of impression or conclusion about lack of bona fides. As will be seen, her appeal is certainly arguable, and perhaps in the highly unusual circumstances of this case, more than arguable.
29. Any stay should be granted on terms that are fair to all parties, thus involving a weighing of the balance of convenience and the competing rights of the parties. When this principle is translated to a parenting case, such as the present one, it does not mean that the best interests of children are somehow subsumed to matters of convenience and rights of the parents. As will be seen the important issue, should the stay be granted, is to ensure that the parenting arrangements in place are in the best interests of the children and are as determined by reference to Part VII of the Act. The Court does not dispute for one moment the significant inconvenience that has been brought on the Father as a result of the Mother’s non-compliance with the interim orders made. That inconvenience was well articulated in his case. That inconvenience is not ignored in the present case, nonetheless the Court will not allow itself to be distracted by this.
30. The Court must weigh the risk that an appeal may be rendered nugatory if a stay is not granted. It is clear that the Mother objects to the children living with the Father in another state, such that the equal shared care arrangement that she proposes could not be reasonably implemented. It is clear to the Court that if she remains on the Region G of Queensland, as she proposes, and the Father remains in Town B, as he appears to propose, a shared care arrangement is not possible.
31. During the Interim Hearing the Mother seemed to concede through her Counsel that if the Father was living in Region H New South Wales in the area colloquially known as the border bubble, a shared care arrangement, or a substantial and significant time arrangement could be implemented, even though they were technically living in different states. The Father was unable to advance any alternative proposal to the current orders made.
32. It is in this context that the issue of an appeal being rendered nugatory, if the stay is not granted, must be considered. It is clear from the Mother’s case that she does not wish to relocate to Town B. An impression that is formed from reading the Reasons for Judgment, and indeed the transcript of the interim application before His Honour, is that the Court may have felt that she had the capacity to do so even though she did not want to do so.
33. The Court was unable to discern from either the evidence in the Mother’s case, or the manner in which it was presented, that if a recovery order were made, that she would in fact relocate to Town B and yet it seems that His Honour’s intent was, if at all possible, that it was in the best interest of these children that an equal shared care arrangement be implemented, albeit in Town B. As the Reasons appear incomplete it is hard to be certain about these matters. On one perspective perhaps the Mother felt that the effect of the Orders was to compel her to relocate contrary to her views, but even this is mere speculation. What this discussion does indicate, however, is how from the children’s perspective, let alone the Mother’s perspective, the appeal becomes pointless if a stay is not granted.
34. From the children’s perspective if the stay is not granted they would need to leave what the Mother contends is her comfortable rented home, and the school they currently attend, and the financial stability they enjoy, and go and live with their father at the home of the maternal grandfather in Town B, which is apparently a two bedroom house, in circumstances where the amount of time that they would spend with their mother is completely unknown. All of this would be in circumstances, acknowledged by both Counsel, that the length of time before the appeal could be determined was simply unknown. The Father’s submissions in relation to this issue seemed, with respect, to minimise the issues discussed.
35. The Court must undertake a preliminary assessment of the strength of the proposed appeal. The Father, unsurprisingly, submitted that the Mother had a weak case for appeal. On his behalf it was submitted that both the Orders made, and the Reasons provided, were clear. The Court respectfully disagrees. The highly unusual circumstances of this case with the death of His Honour meaning that he could not deal with the stay application himself, and some uncertainty that attaches to the Reasons for Judgment, as well as the grounds of appeal already formulated, leave the Court to the view that the Mother’s appeal is at least arguable.
36. Perhaps the most important factor in this case is the desirability of limiting the frequency of any change in the children’s living arrangements. In order to understand the significance of this factor it is important to understand what the evidence seems to indicate about the changes in living arrangements that these children have experienced in their lives. At paragraph 4 of His Honour’s Reasons he sets out some history. His Honour acknowledges that for present purposes it does not really matter whether the parents separated in 2012, as the Mother contends, or 2015 as the Father contends. What is clear is that the family lived in various locations in Australia and then in Country E and that each parent had a substantial involvement in the children’s lives.
37. According to the Mother they met in Country E in 2009 and moved to Town B in 2011 and lived there for about 2 years. According to the Mother the relationship ended and she and the children moved to another house in Town B whilst the Father took up a fly-in fly-out position in Queensland. The Mother deposes that they then moved to City K and then in 2015 through to 2017 the Mother and children lived in Town L on the Region H of New South Wales, whilst the Father lived in Town M, a shortish distance away.
38. In 2017 the parents agreed to relocate to Country E. In 2020 the Mother contends that the Father agreed for her to bring the children back to Australia for a 2 week holiday to visit family on the Region G, and in Town B in New South Wales. The onset of the Covid-19 pandemic resulted in the Mother remaining on the Region G, so she contends, with the children to date, and notwithstanding the Orders made on 10 September 2020.
39. The Father presents a slightly different version of this history but the differences are largely as to dates and times, rather than as to locations. Now what this means to the children is that in their relatively short lives they have lived in a family consisting of both parents and themselves, and in a family consisting of an individual parent and themselves, in at least 6 different homes. It is in this context that the Mother contends that the children should not be exposed to yet another significant change in their lives which involves separation from parent, home, school and broader support environment.
40. The Father contends, however, that even though the children’s living arrangements have been subjected to change in their lifetimes, the more important consideration is the benefit to them of having a meaningful relationship with their father. It is possible, with respect, that Counsel for the Father has conflated two distinct considerations. In the context of the stay application the desirability of limiting the frequency of any change in the children’s living arrangements is, in this Court’s opinion, a significant contraindicating factor to deny the stay.
41. The argument that the Father makes about the need to ensure the parenting arrangements provide the basis for a continued meaningful relationship with their father is a matter relevant to the parenting order that is made should the stay be granted. But that would be considered in due course. For present purposes, and as foreshadowed in earlier comment the Court believes that one of the most important factors in determining whether or not to grant the stay is the desirability of bringing about even further change in the lives of these children.
42. The Court must also consider 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. The Court made it clear to Counsel that as the Father’s application for final orders involved international relocation, that the case would be transferred to the Family Court of Australia. The Notice of Appeal appears to have been filed in Brisbane. If the Court decides that the children should continue to reside on the Region G in Queensland than it would sensibly follow that the most appropriate venue for the Hearing would be the Brisbane Registry of the Family Court. If the Court decides, however, not to grant to stay but to seek to enforce the Orders the change of venue would be to the Sydney Registry of the Family Court.
43. Counsel were not able to make any submissions about the delay before the appeal is determined in Brisbane. No submission was made about the possibility of making an application for expedition. Such would be plainly desirable. Some of the unusual features of this case might indicate that expedition would be seriously considered. It might be thought, however, that the Mother as Applicant would not be minded to seek expedition, especially if the current orders were stayed. There is nothing to stop the Father making the application, particularly if it turns out that spending time with the children on a regular basis becomes impracticable for him.
44. Finally, the Court must consider the best interests of the children as a significant consideration. The Father, quite understandably, contends that His Honour the late Judge Andrew already determined what was in the best interest of the children. That is true, but of course the Mother is entitled to appeal that decision.
45. This factor does not invite the Court to substitute its own determination of what is in the best interests of the children, for that of the Judge who made the decision. This Court is not sitting on appeal from the Judge who made the original decision, nor is it second guessing His Honour’s decision. In the context of a stay application, however, the Court is required to make a determination of what is in the best interest of the children but the context is not at large, it is governed by the parameters of the stay application. In many respects this factor invites a holistic assessment of all of the factors referred to above.
46. When all of these factors are taken into account this Court concludes that a stay should be granted of the Orders made by the late Judge Andrew on 10 September 2020. The stay is not at large, however. The Mother’s application for a stay was predicated on the basis that the Father would be spending time with the children and her orders expressly contemplate a number of scenarios including the Father living on the Region G, and the Father not living on the Region G.
47. The Father, by contrast, even after being expressly invited to make an alternative proposal should the stay be granted, declined to do so. The Court understands that his predicament was that he could not afford to relocate, either to the Region G of Queensland or Region H of New South Wales, because he would not have accommodation, nor would he have work. What is disappointing, however, is that the Father could not advance a proposal for the children to spend time with him, whether in Town B or elsewhere, and taking into account his impecuniosity. This was, with respect, unhelpful.
48. The Father submitted that whereas he did not have the financial means to reside in Queensland, or even Region H of New South Wales, pending the outcome of the appeal, the Mother did have the financial means to stay in New South Wales, given that she was self-employed and had a number of family members living in the Town B area with whom she could stay temporarily. Little is in fact known about the Mother’s financial capacity. What was put on her behalf in submissions was the undesirability from the children’s perspective of the move to Town B. It was not specifically asserted that the Mother could not do so for financial or other reasons.
49. On the Mother’s behalf it was contended that she no longer had a good relationship with the maternal grandfather, but that is largely irrelevant for it could not seriously be contended that the Mother relocate to Town B and live in the same 2 bedroom home that is currently occupied by the Father, the children, and the maternal grandfather. Logically she would have to find alternative accommodation for herself.
50. Her financial capacity to do so is unknown. From her own evidence the Court knows that she rents a 2 bedroom duplex home close to the children’s school. The Court knows that she works in her own business during school hours. The Court knows that after she returned to Australia from Country E she offered to pay for the Father’s flights and accommodation to spend time with the children on the Region G. What is not clear is whether that offer was made to the Father when he was in Country E, or after he had returned to Australia.
51. One thing that the Court does not know is whether the Father will continue to live in Town B if the stay is not granted, and an order is made for the children to spend time with him. One impression that can be formed from his evidence is that his community supports were as great in Melbourne as they are in Town B. The absence of relevant evidence makes it very difficult for the Court to formulate an order for the children to spend time with their father in circumstances where the Court intends to grant the Mother’s application for a stay. The starting point will, therefore, have to be the Mother’s proposal.

Parenting orders pending stay

52. In short, at Order 3 in her Application in a Case the Mother proposes that if the Father is living on the Region G and has suitable accommodation then there should be a week about shared care arrangement. That is the ideal outcome for these children, but it might still be achieved even if the Father were living in Region H, New South Wales, in the area covered by what I previously described as the border bubble. The Order will be amended to reflect this and the Court understood from submissions made by Counsel for the Mother that she would have no objection to this.
53. At Order 4 the Mother contemplates the Father not living on the Region G or not having suitable accommodation. She proposes that the children spend 1 weekend each month with their father from after school on Friday to the start of school on Monday. Again, this Order is a starting point and in a minimalistic way addresses the need for the Father to have a continued meaningful relationship with his children, and likewise for the children to have the benefit of a relationship with their father.
54. The Order will need to be amended to reflect the concession that she made in relation to the Father living in Region H, New South Wales. The Court can understand the reason why the Mother would insist that weekend time occur on the Region G, or in Region H, New South Wales. It is impracticable for the children to travel a longer distance just for a weekend. No such restriction applies during school holidays. At Order 5 the Mother proposes some time during the school holidays and special occasions, these Orders are appropriate.
55. The Mother does not address, however, the practical issues associated with travel, and the cost of travel, noting that this only arises in the Order 4 situation. The Court is placed in a very difficult situation. The Father pleads impecuniosity and there is limited evidence about the Mother’s capacity in a financial sense to support costs associated with travel. It may well be that she has a greater capacity than the Father, but that is based on impression only.
56. If the Court makes no order it doubts the ability of these parents to be able to reach an amicable agreement. This is reflected, for example, in the evidence about the attempts made to arrange for the Father to spend time with the children in Town N shortly before the Interim Hearing of this matter. Regrettably the impression formed is that two parents who once had the capacity to satisfactorily co-parent the children no longer have the capacity to do so. That is an unfortunate consequence of the litigation process. Thus the Court needs to make orders even if, in circumstances such as the present, there is a paucity of evidence on which it needs to make orders that are clearly in the best interest of the children.
57. The effect of the orders that the Court will make will be as follows.
58. If the Father indicates that he can spend time with the children during school terms on one weekend each calendar month, whether on the Region G or on Region H, New South Wales, and subject to any relevant Covid-19 restrictions, the cost of the Father’s air travel is to be shared by the parents equally. True it is that the Father will need to bear the cost of accommodation for the children and himself on these weekends. One must not overlook the fact that the Mother bears all the financial costs of caring for these children at the present time.
59. During school holidays the Father can take the children wherever he reasonably pleases, in New South Wales. The Father is to pay his own costs of travel and the Mother pay the children’s cost of travel, noting that there are only four such trips a year. This is less than perfect, but it represents the best that the Court can do in the circumstances.
60. I will transfer this matter to the Family Court of Australia at Brisbane on a date and time to be advised.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate:

Date: 20 November 2020