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Application for a Stay Pending Appeal from Interim Parenting Orders





MLC 8078 of 2020












The law in relation to stay applications

15. It is a matter of discretion whether or not to grant a stay. The granting of a stay is dependent on the circumstances of each particular case.
16. The relevant principles with respect to the exercise of the discretion in applications for a stay in parenting proceedings are well established. They have been set out by the Full Court in the decision of Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106. Those principles are as follows:-

  • 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.

17. The onus on establishing a proper basis for a stay of the orders rests with the Father. He does not need to establish exceptional or special circumstances. The Mother is entitled to the benefit of the judgment, and she is entitled to presume it is correct. The Father has now filed an Application in a Case in which he formally seeks a stay.

Bona fides of the Father

18. The Father secretively and unilaterally removed the children from Victoria. That removal, without notice to the Court or to the Mother was in breach of the final orders regarding the children’s time with their Mother, as well as in breach of the orders for equal shared parental responsibility, and orders setting out how that parental responsibility is to be exercised. It was also in breach of the orders requiring the children to be enrolled at G School and H School, or if the costs of attending those schools were insurmountable, an order that the children attend their locally zoned state school as at the time the orders were made.
19. Notably, Counsel for the Father indicated that if I did not grant a stay of the orders, the Father would defy the orders and refuse to return.
20. In my view, it reflects poorly on the Father that he surreptitiously and secretively removed the children from Victoria, and says he will refuse to return himself with the children even if a stay is not granted. A return to Victoria would enable the children to return to the schools they have been attending for some time, and resume spending time with the Mother in accordance with the final orders.
21. The Father is not the Applicant in the substantive proceedings. He did not make an application to vary the final orders or to relocate until 30 September 2020. That application was made after the expiration of the timeframe in which he was required to return to Victoria pursuant to my orders of 21 August 2020.
22. In my view, these matters significantly call into question the Father’s bona fides.

Risk that the appeal may be rendered nugatory

23. If an appeal may be rendered nugatory if a stay is not granted, this is a substantial factor in determining whether it will be appropriate to grant a stay. However, that factor alone, although a significant and weighty consideration, is not determinative of the matter.
24. Counsel for the Father submitted his appeal would be rendered nugatory in the absence of a stay being granted. I respectfully disagree. There is nothing that flows as a result of the orders not being stayed pending an appeal that could not be undone if the appeal was upheld. There is nothing that would occur in the absence of a stay that would make it impossible or impracticable to restore the Father’s situation in City B in the event of a successful appeal. The Father has not started employment in City B. He has not purchased a home there, but is renting. He has no family or partner from whom he would be separated if he is required to return.
25. I also note that the only applications on foot before me on 21 August 2020 were:-

a) the Mother’s Application in a Case filed on 30 July 2020, seeking the return of the children and what was effectively enforcement of the final orders;
b) the Father’s Response to an Application in a Case, filed on 13 August 2020, in which the only interim order he sought as that the Mother’s Initiating Application filed on 24 July 2020 and her Application in a Case filed on 30 July 2020 be merged and heard together; and
c) the Father’s Application in a Case filed on 13 August 2020, in which he sought the matter be transferred to the Cairns Registry and the proceedings otherwise be adjourned.

26. The Father did not file his Response, seeking that he and the children be permitted to live in City B until 30 September 2020. That Response, along with the Mother’s Initiating Application, is listed for a first return on 4 November 2020, which is overwhelming likely to predate the hearing of the Father’s appeal. Presumably, the Father’s relocation application can proceed to be heard on an interim basis at that time.

Merits of the appeal

27. I am required to make a preliminary assessment of the strength of the Father’s appeal, to determine only whether the Father has established an arguable case. There are nine grounds of appeal, a number of which have multiple subparagraphs.
28. Counsel for the Father noted at the outset that the grounds of appeal were drawn when his client was acting on his own behalf. He said it was expected that the grounds would be amended. However, the stay application proceeds on the basis of the appeal as currently articulated.

Grounds one to six

29. Notably, Counsel for the Father conceded that the grounds of appeal substantially deal with discretionary matters. It is well settled that on appeal a discretionary decision will only be set aside in the event that there has been a material error of the kind that warrants the discretionary decision to be set aside. That is, matters of weight or preference are usually insufficient to reverse a first instance discretionary judgment. Rather, the decision would need to be plainly wrong before an appellate body would interfere with it. I refer to the well-known decisions of Gronow v Gronow [1979] HCA 63; Mallett v Mallett [1984] HCA 21; and Norbis v Norbis [1986] HCA 17.
30. Counsel for the Father accordingly focussed his submissions with respect to the merit of the appeal grounds to those surrounding questions of procedural fairness, to which I will shortly turn. When asked whether, in light of his concession regarding appeals on discretionary matters, there were further submissions he wished to make regarding the additional grounds, Counsel for the Father made no specific submissions other than to assert that all the grounds articulated were “arguable”. It was significantly unhelpful that Counsel for the Father declined to make submissions beyond that broad statement.
31. The grounds were drawn by a litigant in person. Counsel for the Father made no effort to improve upon, or explain the grounds as drawn. Most of the grounds deal with matters of discretion, and the weight given or not given to particular matters. I have already referred to the case law regarding appeals from discretionary matters.
32. The Father unilaterally, surreptitiously and secretively removed the children from Victoria, to City B, in the midst of a pandemic, with such move changing the children’s place of residence. He removed them from their schools. The removal prevents face-to-face time occurring between the children and the Mother. The move was also in breach of the final orders. In my view, and in light of the expert evidence before the Court by way of the Memorandum, this was plainly a matter in which it was appropriate for the Court to exercise its coercive power. It was also plainly a matter in which the children’s best interests required the application for their return to be heard and determined as a matter of urgency. The Father was given 28 days to arrange to return. There is no substance to the Father’s assertion that that time frame was excessively short.
33. I am not satisfied that the Father has articulated a ground with any merit in relation to the exercise of my discretion in that regard. I am not satisfied that the Father has demonstrated an arguable case that my determination was plainly wrong.
34. In relation to the ground that there were not adequate reasons for judgment, I note the matter was heard in a busy duty list. Short form reasons are permitted pursuant to section 69ZL of the Family Law Act 1975 (Cth) (“the Act”). At any rate, relatively detailed reasons were given ex tempore. There is no merit to this ground.

Ground seven – denial of natural justice

35. Ground seven and the following sub-paragraphs focus on the manner of the hearing, and an assertion that the Father was not provided with procedural fairness, including by being denied the opportunity to secure legal representation. I am also not satisfied there is any merit to those grounds. The Father had just over three weeks between being served with the Mother’s Application in a Case and the interim hearing on 21 August 2020.
36. Whilst I accept it was a relatively tight timeframe, the Father did have time to engage lawyers had he wanted to do so prior to that date. It appeared from his submissions that he had made few efforts to obtain representation from the time he was served until the day the matter was substantially heard before me on 21 August 2020, over three weeks later. I further note that it was the Father’s surreptitious and unilateral removal of the children that brought this matter to the Court’s attention as a matter of urgency. It would be contrary to the children’s best interests for the Father to be able to delay proceedings in these circumstances, particularly as he had three weeks to obtain representation between being served with the application and the interim hearing.
37. Moreover, as was apparent from the Father’s presentation, his understanding of the relevant legal principles was such that he was sufficiently able to address me in relation to the application before me. For instance, he made references to concepts such as “meaningful relationship” and that this “doesn’t mean optimal” relationship, pursuant to section 60CC(2)(a) of the Act. He referred to his “freedom of movement”. He was able to address me on the matters relevant to my consideration including referring to risks faced by the children, the mental health implications he alleges arise as a result of spending time with the Mother, the children’s views, the concerns he has about the Mother’s mental health, his parenting capacity and the benefits he says the children are experiencing by living City B, such as feeling settled, and secure, and being able to attend in-person classes at school.
38. I note further that the Father was legally represented during the previous proceedings. He was represented by Counsel at the Final Hearing when those orders were made largely by consent, as well as having been represented at the interim hearings during the course of that previous litigation. I should also add that the contact details of the Duty Lawyer were provided to the Father in the Microsoft Teams invitation forwarded to him on the afternoon prior to the hearing on 21 August 2020.
39. In relation to the complaint that the hearing was conducted in an expedited manner, I note the comments of the Full Court in Chapa & Chapa [2013] FamCAFC 52, in which their Honours Coleman, Murphy and Loughnan JJ said at paragraph 9 of those reasons:-

This Court has long recognised that, however unpalatable it might be for all concerned – including, crucially, the Court – the volume of cases in which early court intervention is necessary, requires proceedings for interim relief to be of a truncated nature. This Court said in C v C (1996) FLC 92-651 at 82,674 – 82,676:

it is obvious that if the Court could not and did not place limits on the time taken in interlocutory proceedings and the mode by which they are conducted, its workload would mean that many other litigants would suffer serious injustice be reason of increased delays. Further, there must also be concern for litigants themselves in these circumstances, where lengthy hearings of interlocutory matters are both expensive and emotionally draining and do not lead to a final determination of the issues between them ...

This Court has finite resources and a limited number of judicial officers coupled with an ever-increasing workload. If it was required to embark upon lengthy examinations of interlocutory issues such as interim custody, important though they may be to the parties, this would inevitably lead to an inability to provide hearings of final determinations of issues of custody and property within a reasonable time. In addition, other persons requiring a determination of these and similar issues would be impossibly inconvenienced ...

40. Counsel for the Father said that the process was not sufficiently explained to the Father. On 21 August 2020, I told the Father that I would hear from Counsel for the Applicant, and then I would hear from the Father. I am unclear beyond that what needed to be explained to the Father regarding interim hearings. Counsel for the Father was unable to provide the Court with any authority that set out what else a litigant in person needed to be told at an interim hearing. I am satisfied the Father was well aware of the issues in dispute, and of the orders that were being contemplated, and that he was provided with the opportunity to make submissions with respect to same.

Ground eight – reasonable apprehension of bias

41. The Father asserts that I formed an adverse impression of the Father, which gave rise to a reasonable apprehension of bias against him. In my view, there is similarly no merit in that ground.
42. The test for apprehended bias, as set out in Johnson v Johnson [2000] HCA 48 (“Johnson”), is whether a fair-minded lay observed might reasonably apprehend that the Judge may not bring an impartial mind to the matter to be determined. Again, Counsel for the Father did not address me in any detail regarding this ground.
43. The Father asserts that I took an excessively interventionist approach, and effectively cross-examined him. I certainly did ask him questions, to clarify his evidence, his submissions and his actions. The High Court in Johnson at paragraph 13 said:-

At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx…Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.

44. At an interim hearing, in a busy duty list, the lists could not be managed if judges did not give an indication of their views and simply sat, Sphinx-like, listening to each and every case in their totality. Having read the material, I made my preliminary view clear to the Father at the outset on 17 August 2020, and gave him the opportunity to respond to and deal with that. He had the further opportunity to make submissions on 21 August 2020, which he did.
45. As observed by Alstergren CJ in Charisteas & Charisteas and Ors [2020] FamCAFC 162 (“Charisteas”) at paragraph 44:-

The characteristics of the hypothetical “fair-minded lay observer” were recently set out in Martin v Norton Rose Fulbright Australia (No 2) [2020] FCAFC 42 where the Full Court of the Federal Court stated at [21]:

...That observer is amongst other things: (1) taken to be reasonable; (2) does not make snap judgments; (3) knows commonplace things and is neither complacent or unduly sensitive or suspicious; (4) has knowledge of all the circumstances of the case; and (5) is an informed one who will have regard to the fact that a judicial officer’s training, tradition and oath or affirmation, equip the officer with the ability to discard the irrelevant, the immaterial and the prejudicial...

46. As further observed by the majority in Charisteas at paragraph 142:-

The hypothetical observer is not “unaware of the way in which cases are brought to trial and tried”. Further, before forming a view about the existence of apprehended bias, the hypothetical observer would take the trouble to inform himself or herself (but without the level of knowledge of a lawyer) of at least the basic considerations needed to come to a fair assessment.

[citations omitted]

47. I did press and question the Father as to why he and the children ought not immediately be required to return to Victoria. I also pressed and questioned the Father as to how he envisaged the children could maintain a meaningful relationship with the Mother if they remain in Queensland. I do not agree that I was dismissive of his arguments. In light of his submissions that the children were expressing clear views, and their mental health was such that they should remain in Queensland, an order was made for the Child Inclusive Conference and the preparation of the Memorandum to ascertain those views and for the Court to have some independent insight into the children’s psychological well-being.
48. Given the circumstances of the case, I do not accept that there is an arguable case for apprehended bias. I am not satisfied that a reasonable observer with the full knowledge of the case, who was aware of the terms of the final orders, was aware of the history of the matter, had read the parties’ affidavits and was armed with the Memorandum, would have been concerned that I did not bring an impartial mind to the matter.
49. Accordingly, I am not satisfied that the Father has established an arguable case in relation to any of the grounds of appeal.

Desirability of limiting the frequency of any change in a child’s living arrangements

50. It is undesirable that children undergo unnecessary changes in their living arrangements.
51. The Father has unilaterally, and without notice to the Mother or to this Court, imposed a change of location of primary residence, and a change of schools, upon the children. He now seeks to rely on this consideration to stay the order which requires that he and the children return to Victoria.
52. Somewhat remarkably, the Father instructed Counsel that even if the stay was refused, he would not be returning to Victoria. Accordingly, he says, the Court would have to consider making a recovery order, and placing the children in the Mother’s care, which he says would be a significant change for them. It seems that the Father, in refusing to return, is attempting to create a situation that may require a substantial change in the children’s living arrangements, which he then seeks to rely on in his stay application. In my view, that is an extraordinary submission to make.
53. If the stay is not granted, and the Father then complied with the orders, the children would return to Victoria. They could remain in his primary care, return to living with their Father in the home of the paternal grandparents as they have done for the last year, return to their familiar schools and community, and the younger children can resume spending time with their Mother. They have only been in Queensland for a few months. The Father can then pursue his interim and ultimately his final application to relocate in the usual course.
54. The Father’s indication that he will not return, even if that means a recovery order is issued and the children are placed in the Mother’s care, reflects poorly on him. In my view, it also substantially undermines his assertion that the children are at risk in her care.

Timeframe for the hearing of an appeal and whether satisfactory arrangements can be implemented pending an appeal

55. Counsel for the Father adduced no evidence as to the likely delay in the hearing of his appeal. In my view, given the matters raised by Ms F in the Memorandum, any delay in the children’s return to Victoria and the resumption of time with the Mother could further fracture the parent-child relationships.
56. In any event, it is apparent that no satisfactory arrangements for the children Y and Z to spend time or communicate with their Mother can be implemented, given the distance to which the Father has removed the children, the costs of travel that would be incurred to facilitate time and the travel restrictions faced as a result of the current COVID-19 pandemic. It is common ground that the Father has not ensured Y and Z have even had electronic or telephone communication with their Mother since they were removed from Victoria.

Best interests of the children

57. I am most concerned that if the children are not returned to Victoria forthwith, that permanent damage will be done to the Mother-child relationship. It is apparent from the Memorandum that the relationship between X and her Mother has broken down. It is also apparent that the relationship between the Mother and Y is under stress. Z misses her Mother and wants to see her. Ms F recorded the issues for the children to include that:-

The children’s relationship with their mother is at risk given concerns regarding alignment behaviours from the father along with further influence the [sic] oldest sibling, X.

58. The best interests of the children, in my view, strongly mitigate against a stay being granted. I set out in some detail matters relevant to the best interests of the children in my previous judgment in these proceedings. The present arrangements – whereby the children are not able to have any meaningful relationship with their Mother – are simply not satisfactory.
59. Counsel for the Father submitted that if a stay was not granted, and the Father did not return, a change of residence and a recovery order would be the next logical step for the Court to consider. He said there may need to be an order for the splitting of siblings. He said any such order could not be in the children’s best interests.
60. The application before me is the application for stay of the orders of 21 August 2020. In my view, it is premature to consider what further orders may be made if the Father refuses to comply with the orders in the absence of a stay of same. If, when the stay is not granted, the Father maintains his refusal to return, the Court will consider what other orders might then be made in the children’s best interests.

Further listing of the matter

61. The matter is currently listed as a first return of the Mother’s Initiating Application and the Father’s Response in the duty list on 4 November 2020. It is apparent that should the Father wish to press his relocation application, or in the event that he does not comply with my orders of 21 August 2020, the matter will require more time than I am able to give the matter that day. It is listed in an extremely busy duty list and would be better dealt with if it is listed as an interim defended hearing.
62. Accordingly, I will vacate that hearing date. The matter will be re-listed before another judge, who it is anticipated will be able to hear the matter as an interim defended hearing on 20 November 2020.
63. For all of the foregoing reasons, and in the exercise of my discretion, I dismiss the Father’s Application in a Case for a stay of orders filed on 18 September 2020.


I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Carter




Date: 8 October 2020

Posted in: Derek Legal Blog at 04 November 20

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