Adami & Adami (No.2) [2015] FCCA 1365 (15 May 2015)

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

1. These proceedings come before the Court today with respect to an Application in a Case filed 6 May 2015.
2. The parties to the proceedings are Ms Adami, who is, for today's purposes, the Applicant in her plea for interim or interlocutory relief, and Mr Adami, the Respondent thereto.
3. In the substantive proceedings to which the Application in a Case relates, the parties are reversed, Mr Adami being the Applicant for substantive relief.
4. The Application in a Case seeks a number of Orders. That which is pressed today is, in essence, an Application for a stay upon terms and conditions, together with an Order for costs. That is resisted by Mr Adami.
5. The Application in a Case arises following the filing of an Appeal and an Application in an Appeal. I am advised and accept that the Application in an Appeal seeks expedition of the Appeal. Both applications were filed 6 May 2015. The Orders which are appealed are Orders which were made in a duty list on 4 May 2015.
6. The reasons for primary judgment were delivered on an ex tempore basis on 4 May 2015. A settled version of those reasons, as required for the Appeal has been provided to the parties, although only this morning. I do, in my defence, observe that the reasons were ordered following advice to Chambers of the Appeal having being lodged. The transcript of reasons was provided some short time thereafter on 11 May and the reasons settled during the conduct of the Court's business this week spread across attendance upon two Registries. Thus, to the extent that I extend my apologies to the parties that they have not had the reasons earlier, they have, in effect, been settled and produced in the space of some days.

Material considered in dealing with the application today

1. I have read and considered each of the following documents:

1. The Application in a Case filed 6 May 2015; 2. The Affidavit filed in support thereof, being an Affidavit of Ms Adami, sworn or affirmed 6 May 2015 and filed the same day;

1. An outline of the mother's submissions with respect to the stay application.
2. I have also had regard to, although I have not read the totality of, the Response and Affidavit that had been filed by Ms Adami on 1 May 2015. Specific portions of that material have been referred to by Counsel for one or other of the parties. The material filed by Ms Adami also annexes a copy of the Notice of Appeal.
3. I have also had the benefit of erudite and helpful oral submissions by Senior Counsel on behalf of the Appellant.
4. In the case of Mr Adami, I have not received any material from him filed specifically in response to the Application in a Case. Mr Adami relies upon the Reasons for Judgment delivered by me on 4 May, 2015 together with his Initiating Application and Affidavit. I have not read the Affidavit in detail today but portions thereof to which I have been referred. I have had the benefit of submissions made on behalf of Mr Adami by his Counsel which have, again, been helpful and erudite.
5. I accept that the parties and the Court are at one as to the relevant law to be applied in dealing with the application for Stay. I am specifically referred by Senior Counsel for the Applicant to Trahn & Long (No.2) [2008] FamCAFC 194, as incorporated within the outline of submissions to which I have referred. I have also had regard to the Full Court's erudite discussion in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 slightly after but entirely consistent with Trahn & Long. There is no differentiation between that which is espoused by their Honours in each of those cases, each relying upon a significant body of prior appellate case law as set out and enumerated therein and, with respect to Aldridge & Keaton, commencing at paragraph 17 thereof.
6. Thus, it is clear that I must apply the following principles:
   • (1) The onus to establish a proper basis for the stay is on the Applicant. However, it is not necessary to demonstrate special or exceptional circumstances.
   • (2) A person who has obtained a Judgment is entitled to the benefit of that Judgment.
   • (3) A person who has obtained a Judgment is entitled to presume the Judgment is correct.
   • (4) The mere filing of the Appeal is insufficient to grant a stay.
   • (5) The bona fides of the Applicant.
   • (6) 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.
   • (7) 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.
   • (8) Some preliminary assessment of the strength of the proposed Appeal and specifically whether the Appellant has an arguable case. I make very clear that it is not my role to determine the Appeal nor to "second-guess" that which the Full Court may consider and deliberate upon and ultimately conclude in determining the Appeal. I do not propose to embark upon such an exercise. I will, however, touch upon the points of Appeal as they are presently drafted and I accept that which is submitted by Senior Counsel for the Applicant that the points of Appeal may well be revised, amended or changed in some substantial fashion (or not) following a detailed consideration of the settled, written reasons.
   • (9) The desirability of limiting the frequency of a change in the child's living arrangements.
   • (10) 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.
   • (11) The best interests of the child, the subject of the proceedings, are a significant consideration though not, as in consideration of a parenting order, the paramount consideration. As is observed by Senior Counsel for the Applicant, the determination of an application for a stay is not a parenting Order and thus the paramountcy principle established by section 60CA of the Family Law Act 1975 (Cth) does not apply. However, I would be loath to and I am satisfied would be remiss in the discharge of my discretion to disregard the child's best interests altogether. I am not urged to do so.
7. I propose to touch upon the evidence that is relied upon in support of the Appeal, mirroring to a substantial extent the grounds of Appeal as they are presently framed, and to then consider each of the above principles to which the Full Court has directed my attention.
8. The mother, by her Affidavit, 6 May 2015, recites the Orders that are made and the subject of the Appeal, and sets out, commencing at paragraph 7, a number of matters that are suggested to have been noted by the Court in the course of delivering Judgment. They are, to a large extent, as contained in paragraphs 7 and 8 of the Affidavit, reflective of the grounds set out in the Notice of Appeal.
9. From the outset, I made it clear that I have had the benefit, having spent some time this week reviewing and settling the reasons from the transcript provided, of that which was relied upon in the proceedings and the determination that was made. I also make clear, although I am satisfied that it is not a relevant factor in the exercise of discretion as to the granting of a stay but note that it has some relevance as regards the proceedings generally, that the matter was dealt with on the first day of a week of duty, a list which over the week comprised 130 matters and, particularly on the day in which these proceedings were determined and, in part, as a consequence of the time taken in dealing with the matter, but appropriate so in light of the issues that were raised therein, that the Court sat until 7pm or 8 pm each day and on Monday 4 May until 8pm.
10. The allegations that are set out in the Notice of Appeal, if they might be referred to in those terms for one moment, suggest a failure to take into account certain matters, having made certain findings which were not open and failing to make certain findings which could and should have been made. Again, I appreciate that the Notice of Appeal is drafted without the benefit of the settled reasons which are reflective of the transcript of reasons delivered on an ex tempore basis. However, in looking to each of the allegations, I am not satisfied, whilst it is not my job to determine whether Appealable error is established, that the allegations raised as to that which was taken into account erroneously or not taking into account erroneously are accurate. That is not a criticism at all of the drafting of the document in the above circumstances.
11. The gravamen of the matter, it would seem, is controversy as to whether risk was sufficiently demonstrated or apprehended so as to enliven in the Court's mind the need to impose supervision on a formal basis. Again, as Senior Counsel for the Applicant has eruditely commenced their submissions, the significant issue was whether supervision was required and, if required, whether it needed to be a formal supervision by a funded service, (i.e. the (omitted) Contact Centre), or whether something less formal was sufficient.
12. To that end also, issue was raised as to the terms of the Orders as issued as not requiring "supervision". I readily concede that the word "supervision" is not used within the Orders as they stand. What is clear from the reasons delivered with respect thereto is that any time that the father is to spend with the child the subject of the proceedings in accordance with those Orders, being a period from 9am until 5pm, seven hours each Saturday, is to occur at the home of and within the home of the grandparents and with one or other of them or a paternal aunt "present at all times".
13. The travel and transportation arrangements for the child are also absent the father, (i.e. he is to be at the home of the grandparents and within it, and the child is to be collected from the mother's home by one or more of the persons who are to be present with the father and the child at all times, and collected from that home by the mother). Thus, the child would never be in the father's care other than in the presence of other people, paternal family members, and within a specified locality. In any event, whether that is an exercise in semantics or something more profound is a matter that I will leave to the Full Court.
14. Paragraph 62 of the Judgment perhaps most concisely expresses the reasoning behind the above Orders and the rejection, at interim hearing, of the mother's plea that time not occur or, if it were to occur, that it occur through the (omitted) Contact Centre and not otherwise. Therein and after referring to various authorities dealing with the unacceptable risk test and particularly extrajudicial writings by Fogarty J, I have indicated:
    • I am not satisfied that an unacceptable risk, such as would warrant formal supervision through a contact service is adequately made out by the mother taking her evidence on its face and at its highest.
15. That flows on from a discourse which occurred during the course of the interim hearing as to the availability to the Court of findings of fact. I had made clear at the commencement of the reasons, or at least I would hope so, that whilst the parties were in "heated dispute regarding most factual issues" (paragraph 3) and having discussed that the Full Court had never prohibited findings of fact at interim hearing (paragraph 4) that I proposed to adopt the caution that the Full Court urged, (i.e. that findings of fact should only be made if necessary and then only when there was concession or irresistible corroboration).
16. With respect to some very limited portions of the evidence, such findings were available, principally by means of concession. They are set out in the reasons under the heading "Agreed facts and chronology" commencing at paragraph 24.
17. With respect to matters which are in dispute, indeed the subject of heated controversy, particularly allegations of risk to the child arising from a number of facts which I need not enumerate further at this point, I had, as I would hope might be apparent from paragraph 62 of the Judgment referred to above, adopted an approach analogous to that employed in the determination of interlocutory applications, the evidence being untested and thus taking it on its face and at its highest as more probably correct.
18. It was on that basis, upon the evidence that the mother as presented and accepting that it was more probably true, that I was not satisfied that an unacceptable risk was made out such as would require that supervision through a formal contact service was necessary. That relates, to some extent, to the matters set out in paragraphs 7 and 8 of the mother's Affidavit. I had also made clear in the reasons for Judgment (and nothing has arisen in dealing with the matter today that would change my view) that I accept that the mother holds genuine concerns and fears for the child's safety with the father, although I was not satisfied and remain unsatisfied that those fears as expressed were such as would warrant formal supervision.
19. I do propose to now address the matters of principle that the Full Court has identified. I propose to do so within the context of significant elements that impacted upon the determination on 4 May 2015 and which remain matters of some concern. That is particularly so as regards what might be described as the more significant of the allegations, a suggestion that the child would be exposed to significant risk through the father coming upon or having persons come upon him, described throughout the evidence as "bikies", who have previously, on the father's representations to the mother but not within the mother's direct observation, threatened him with harm including to the point, on at least one occasion, based upon the father's representation, of having placed a gun to his head.
20. The evidence with respect to those matters has been canvassed in the primary Judgment and is, again, traversed by the parties today, particularly in submissions on behalf of the father. The father is suggested (by the mother) to have last raised such matters with the mother in May of 2014 and it had been a matter of some concern and certainly something which exercised my mind in exercising discretion as I had that, notwithstanding those discussion, the mother's position that the child should not spend time with the father other than through a supervised contact service had been somewhat different prior to the separation of the parties.
21. One of the few agreed facts between the parties is that for three periods of at least some days each and on one overnight occasion post-May 2014 the child had been in the father's care without the mother present and absent any other supervision or monitoring. That is not necessarily determinative of any issue, as I had made clear in the primary reasons for Judgment. However, those actions by the mother were potentially at odds, at least at that point in time, with the risk that the mother suggests she apprehends. Various other risks are also suggested to arise in the evidence. I do not propose to canvass them further.
22. One final issue that I must deal with before turning to points of principle is the conditional admission of certain documents tendered in the father's case and which are marked Exhibit R1. Objection was raised to that material by Senior Counsel for the Applicant on, potentially, a number of bases but most clearly relevance. The material is tendered to seek to dispute the bona fides of the mother, whether with respect to her Appeal or generally. The documents tendered comprise certain portions of correspondence between the then solicitors for the parties and with respect to an attempt to negotiate an arrangement for time between the child and the father to be supervised by an organisation Connecting Families Proprietary Limited.
23. What is clear is that the proposal, when those discussions were occurring through attorneys, was that the agency would supervise time between the child and the father at the home of his parents. Thus, it is asserted in the father's case that the mother lacks some bona fides whether with respect to the proceedings generally or the Appeal as she had previously intimated her agreement thereto. The difficulty with that is that the apparent agreement, or at least overtures towards one, occurred within a specific context and at a specific point in time.
24. What is clear from the mother's material to which I have been taken by Senior Counsel for the mother is that she, clearly, at or about the time of that correspondence or shortly thereafter changed her mind. The mother addresses that in paragraphs 115 and 116 of her substantive Affidavit. In those circumstances, I am not satisfied that the material would be sufficiently relevant to the determination that I am required to make, the application of the principles enunciated above, and thus I reject the tender.
25. Principles with respect to the Stay:
    • (1) The onus to establish a proper basis for the Stay rests with the Applicant

(2) A person who has obtained a Judgment is entitled to the benefit of the Judgment

Again, that is a given and it is not suggested by either party that it would be other than so, subject to a consideration of the balance of factors, particularly the Applicant's Appeal being rendered nugatory by the refusal of a Stay.

(3) A person who has obtained a Judgment is entitled to presume it is correct

Clearly, the father asserts his support for the Judgment delivered and the Orders made as a consequence thereof and believes that no error was made. The mother, clearly, contests that position. A consideration of the Appeal points as presently drafted, I am satisfied, having had the opportunity, far more abundantly than the parties and their attorneys to read the reasons that were delivered orally a little over a week ago, would suggest that maintenance of some of the Appeal points might be somewhat problematic. However, I am not satisfied that it need be considered further, nor could it be dispositive. That would cause me to enter upon the Full Court's territory and I do not propose to do so.

(4) The mere filing of the Appeal is insufficient to grant a Stay

I accept the bona fides of the Applicant on the basis of her assertion of same. I accept that she has a strident belief based upon her experience of the father, both pre and post-separation, that he cannot be trusted and that matters that he has represented to her have operated in her mind to cause her to have concern for the child.

I was not satisfied on 4 May 2015 (and no further evidence is advanced to suggest) that any degree of worry or anxiety has had a direct causal link to any behaviour of the child nor that it would interfere with the mother's capacity to parent the child or to maintain her relationship, bonding or attachment with the child. However, I make clear that I do not seek to impute - although the father does -the bona fides of the Applicant in her Appeal.

(6) A Stay may be granted on terms fair to all of the parties

This may involve a balancing of convenience and competing rights of the parties. That perhaps speaks to the factors above, i.e. the father's entitlement to presume the Judgment is correct and to obtain the benefit of it and the mother's desire to prosecute her Appeal which she asserts, with some validity, might be rendered nugatory (the following principle) if the Stay were not granted.

The mother proposes a Stay on terms and conditions, namely that the father would spend time with the child through the (omitted) Contact Centre, the position that she agitated at interim hearing. The father concedes that if consideration was to be given to a Stay, that he would consent to a variation of the Order to provide that, rather than one or more paternal relatives being present at all times, that they be required to supervise the time. I am not satisfied the two are substantially different. I will leave it to the Full Court to determine whether anything of significance turns upon that wording. The Order that is made requires that the father have no engagement with transport, spend time at a nominated address and within it, and that he spend his time in the presence of certain others. Other restraints are built into the Orders, particularly to seek to address and provide some reassurance to the mother, having referred in the primary Judgment to and having been conscious of the dicta of Coleman J (sitting as a single Judge constituted Full Court) in Grange & Gardiner [2011] FMCAfam 1313 to alleviate any concerns presently held regarding the father's suggested ongoing use of drugs and noting that he has already provided a number of drug screens and consented readily to an Order that he continue to do so on a random basis.

As to terms that would be fair to all parties, I am also conscious of some connection therewith, although the child is not a party, to the child's best interests which are relevant and I propose to thus defer further discussion of that factor until the final principle.

(7) A weighing of risk that the Appeal may be rendered nugatory

I accept that which is submitted by Senior Counsel for the Applicant that a refusal of a Stay would render the Appeal nugatory, (i.e. the Applicant proposes that all and any time between the father and the child would be supervised through a formal supervised contact service). If the Court declined to grant a Stay on conditions or otherwise, it is inevitable, thus, that the Orders that are presently in place and which have already been the subject of an Application for Contravention (although that is not before the Court today and thus not considered, nor any material in support of it) would continue and which provide for a regime contrary to that sought by the Applicant.

(8) Preliminary assessment of the strength of the proposed Appeal and whether there is an arguable case

I am somewhat troubled by this factor in that, albeit with what might be described as superior knowledge to the parties as to the written reasons now settled from the ex tempore Judgment and reflective of the reasons delivered on 4 May 2015, that the allegations that are made as to the Court having fallen into Appealable error have less strength than might perhaps be apprehended. But ultimately that is a matter for the parties and the Full Court. It is suggested, for instance, that the Court failed to take into account the risk posed to the child in the event that the child spend unsupervised time with the father. Firstly, as I have indicated, paragraph 62 of the Judgment makes clear that I did take it into account. I may well have come to a conclusion that is at odds with that which the mother would have had me come to, but it most assuredly was taken into account.

The second element thereof is whether the father's time is or could properly be described as "unsupervised". As I have conceded, the Order certainly does not contain the words "supervised" or "supervision". It does, however, require the father to spend his time in a specific location intended to address the very concern that the mother raised, particularly that the father not be transporting the child lest he might be come upon by the "bikies" who are suggested to be after him. That is also so notwithstanding that he has had unsupervised time with the child certainly from the time of his last disclosure in May 2014 and until separation. However, leaving that issue aside, as I have indicated, whether it is semantic or substantial, I am satisfied that the father will not, in reality, have unsupervised time. His time will be in the presence of others in a specific place. Thus, I have some difficulty in accepting that such criticism of the existing Order is warranted. However, I am prepared to accept, for the purpose of this determination, that there is an arguable case, particularly as it is not my role to second-guess the Full Court or to seek to critically analyse each of the grounds of Appeal that are alleged.

(9) The desirability of limiting the frequency of change

This is a problematic principle to apply in this case. The parties are agreed that between their separation in November 2014 or thereabouts and the making of Orders by this Court and continuing that the child has not spent time with the father. That is not intended to suggest any admission by the mother as to non-compliance, far from it. It is simply the father's allegation which, again, I accept on its face and at its highest for present purposes. The only time that the child has interacted with the father since the separation of these parents was one attempt by Skype which was short-lived and, it would seem from the perspective of both parents, unsatisfactory, perhaps not surprisingly so in light of the fact that it occurred on the child's first birthday.

The frequency of change is thus problematic. The status quo, if it might be referred to as that for one moment, is that the child does not spend time or communicate with the father. The Orders that are made by the Court, if they are not stayed, would see a change to that regime. The Orders proposed by the mother as terms and conditions of any Stay would also see a change in the sense of a reintroduction of time albeit on a different basis than ordered.

The parties are agreed that there will be a resumption or commencement of time in some form. It is a matter of not so much its frequency, as the parties appear relatively agreed in that as well, being at least weekly, but the length of each period, whether it is two to three hours or whether it is seven hours as was ordered, together with the mechanism by which it is implemented and whether it occurs through a formal supervised contact service or is supervised, monitored or the subject of the presence of others at all times, as was ordered. Accordingly, I am satisfied that factor does not assist a great deal.

(10) The period of time in which the Appeal can be heard and whether satisfactory arrangements may support the granting of a Stay

The mother opines in her material that whilst she concedes that a change to the supervised contact service would cause some "inconvenience" for the father, that such inconvenience would not be significant. She suggests that the significantly grave and higher risk to the child of having time other than at the supervised contact service would outweigh that inconvenience. The period of time for the Appeal is not presently known. If it is expedited, that application not having yet been determined, it may be heard within a space of weeks to months. If it is not, it will be a significant delay. The arrangement in the meantime, as proposed by the mother, is time through the supervised contact service with the concession made today through her Counsel that she would agree to contribute some portion of the cost thereof.

(11) Best interests of the child being a significant consideration

In relation to this factor, I am conscious that the determination which was made on 4 May 2015, the primary Order the subject of the Appeal, was an Order that was determined in the exercise of discretion as to that which would be in the child's best interests and on the basis of the child's best interests being paramount.

I have some regard to the portions of the Full Court's decision in Aldridge & Keaton beyond the statement of principles to be applied. I am conscious that the Appeal arose from discretionary parenting Orders made by the Chief Judge of the Federal Circuit Court (then Chief Federal Magistrate) and that their Honours comprising the Full Court had set out, commencing at paragraph 28 of their reasons, the portion of his Honour's reasons for refusing a Stay in that case, namely paragraphs 51 to 56 thereof.

There is some degree of analogy, I am satisfied, between this case and that before the Chief Judge. That is not to suggest that it is a direct comparison of those facts and circumstances with these or slavishly following the logic set out by his Honour, the Chief Judge therein. In that case, the Chief Judge had determined that time between a child and a parent, albeit a "deemed parent" by reference to section 60H of the Act, should occur. It was clear thereby that by refusing a Stay of the Orders pending the Appeal, that the Appeal would to some extent, significant perhaps, be rendered nugatory and, further, that there would be a change in the child's arrangements through the commencement of time. In this case I am satisfied that similar considerations apply. I have determined that:

(a) Taking the mother's evidence at its highest and on its face and as more probably true, that I am not satisfied that an unacceptable risk to the child through spending time with the father other than on a formal basis through a supervised contact centre exists;

(b) That it is in the child's best interests that time resume; and

(c) That the mother's concerns as to the child's safety could be adequately safeguarded by the time occurring:

• (i) Absent the father's engagement in travel so that the father would never be outside of the home of his parents with the child;
• (ii) At and within the home of the paternal grandparents; and
• (iii) With the presence of others, including the paternal grandparents and aunt, persons whom the mother had invited to spend time with the child and whom, it was conceded, had some familiarity with the child, although clearly disrupted and clearly nowhere near as abundant as the mother's relationship with the child.

1. The possible consequence for this child is a significant delay in the resumption of an established relationship with the father and/or the relationship resuming in a fashion whereby the father will not significantly "parent" the child. On the basis of the position advanced by the mother, as a condition of any Stay that might be granted, the delay may not be significant but it would be a substantially different set of arrangements.
2. I had been conscious, in the primary Judgment, to consider, as indicated, the dicta of Coleman J in Grange & Gardiner. I do not cavil with anything expressed by his Honour in that case, and I accept that it would provide greater reassurance to the mother if time were occurring through the supervised contact centre. However, that is a determination I have already made, and a determination which I am satisfied is not spoken to by evidence at the time of the primary hearing or on this occasion that would suggest that the mother could not cope with such arrangements (beyond her mere assertion) or that there would be detrimental impact upon her, her functioning or her care of the child, or her relationship with the child if such periods were to occur as already ordered.
3. Having regard to all of the above and balancing those factors as best I can in a busy list, I am satisfied that whilst the Appeal would be rendered nugatory or potentially so, that the child's best interests, the father's entitlement to obtain that which was ordered, and the consideration of the very matters the subject of the Notice of Appeal which has been set out at some length within the primary Judgment delivered, is such that, on balance, fine as it may be, I am not disposed to grant a Stay, on conditions or otherwise.
4. Accordingly, I propose to dismiss the Application in a Case filed 6 May 2015.

I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of Judge Harman