Stay of orders refused
Lofts & Lofts (No 2)  FamCA 125 (22 February 2016)
The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2016/125.html
- The principles applicable in considering an application to stay the operation of an order pending determination of an appeal are as summarised by Mr Alexander in the outline prepared on behalf of the applicant. They are clearly apparent from authorities such as Kelly, Clemett, Aldridge & Keaton, Friscioni, SRS & KLS & Child Representative, and Trahn & Long (No. 2).
- Included within the principles to be applied are the following: that a person (here the father) who has obtained a judgment is entitled to the benefit of the judgment and entitled to presume it is correct and that a stay of the operation of orders should not be granted as a matter of right but only upon a Court being satisfied that the applicant, who bears the onus of establishing a proper basis for stay, has made out grounds which justify (in the circumstances of any particular case) making an order staying the operation of existing orders.
- In determining the application, it is not necessary that an applicant, (here, the mother) demonstrate special or exceptional circumstances; rather, in determining whether or not to grant a stay of the operation of an order, it is important to consider the consequences for children of granting or refusing a stay – noting, of course, that children’s best interests are a significant consideration. It has also been said on previous occasions by the Full Court that, in determining whether or not to grant a stay, it is especially desirable that the frequency of changes to arrangements relating to children should be limited as much as possible.
- In determining whether or not to grant a stay of the operation of orders pending appeal, the Court should also consider the bona fides of an applicant; whether there has been undue delay; the length of time it will take the appeal to be heard; whether refusal of a stay renders a successful appeal nugatory (as this is a substantial factor); the hardship, if it could be termed that, to an unsuccessful parent for a stay as weighed against the hardship to an unsuccessful respondent to the application for stay and where the balance of convenience lies; and it is also appropriate to take into account a preliminary assessment of the strength of the appeal and whether there is an arguable case.
- It could not be said, nor do I conclude other than that the mother has approached the filing of the appeal against the orders and determination I arrived at in December last year, other than on a bona fide basis. I accept her bona fides. As I have already said, there could not be thought to be any undue delay between the making of the order and the filing of the notice of appeal upon which the subsequent application for stay rests.
- In terms of determining the length of time for the hearing of an appeal, I can simply record that, as I understand it, the Full Court will sit in Brisbane in June, August and November 2016 of this year. The Rules provide for an application for expedition of a hearing of any appeal – that determination, of course, being a matter for a member of the appeal division of this Court.
- The substantive submissions made by Mr Alexander on behalf of the Applicant really advance that, absent a stay of the operation of the orders, a successful appeal will be rendered nugatory (in that the children will continue to spend unsupervised time with the father) in circumstances where the mother’s case on appeal (as it was at trial) is that this care arrangement places them at an unacceptable risk of harm.
- I am not persuaded that a refusal to grant a stay of the operation of the existing orders will render a successful appeal nugatory. That is because, it seems to me, parenting orders are always capable of change. If, after determination, it were concluded by the Full Court that I have erred in arriving at the orders pronounced in December 2015 and that there exists a proper and appropriate basis for the imposition of supervision over the children’s time with their father and that such result is in their best interests, then, of course, it will always be open to the Full Court to impose supervision.
- I note that nothing contained in the affidavit material relied upon by the mother contains any basis upon which the Court could be persuaded that the children’s time with their father has exposed them to risk. Her material does not refer at all to any of the unsupervised occasions which have occurred to date. The only evidence before the Court today in determining the application for stay is overwhelmingly that the time has proceeded well, that the children have enjoyed it, that it has taken place with the support of and interaction with members of the extended paternal family on a number of occasions and that the children’s time has commenced to occur overnight at the home of their paternal great grandmother where their father continues to live.
- Taking those matters into account, I consider, insofar as an assessment of balance of convenience (if that could be thought to be an appropriate way of outlining a conclusion about children’s best interests) that it would not be beneficial for the children to revert to spending one hour per fortnight at the local Contact Centre with the father after the opportunity they have had to spend unsupervised time with him. As must be apparent, a significant aspect of this conclusion takes into account the absence of any evidence whatsoever from the mother to suggest that the children have been presented to her at the conclusion of such unsupervised time in any way that would cause concern for the level of care they have received whilst spending unsupervised time with their father.
- For those reasons, then, I dismiss the application for a stay and the application made by way of Application in a Case.
- I accept the submissions made by Mr Alexander insofar as they touch upon what purports, in a sense, to be a cross-application as contained within Mr Lofts’s response to an Application in a Case filed 15 February 2016 seeking to vary the orders I made in December in last year. It appears very much to me that the orders sought there do, in fact, amount to an application to vary. I am not persuaded that it is appropriate, nor open to the Court, at this point in time to consider such application. So, for that reason, that aspect of the Application in a Case which was framed in the alternative will also be dismissed.
- I take into account also that – albeit as an alternative – Mr Lofts seeks an order that the mother pay his costs of responding to the application for a stay – on an indemnity basis. Reading the Response to an Application in a Case filed 15 February 2016, he did not seek an order for costs in the event that his application for variation was successful, but did so if the mother’s application for stay of operation of the orders was dismissed.
- Either position would have resulted in the parties appearing today. I take into account that Mr Lofts appears on his own behalf and that the various affidavits he has filed and relied upon in responding to the application for stay of the operation of the December order all appear, on the face of the documents at least, to have been prepared by him (albeit with the assistance, perhaps, of someone, perhaps, with some legal training).
- I take into account that s 117(1) of the Act mandates that the starting point for an assessment of an application for costs in proceedings under the Act is that each party bear their own costs. As I have said, I am not persuaded that the application for stay of the orders was anything other than bona fide on the part of the Applicant and there could not be thought to have been any delay or undue cost or delayed process in having that application determined.
- I decline to make an order as to costs in the manner sought by Mr Lofts.