Alexander v Cambridge Credit Corporation [2009] FamCAFC 106 | Case summary

What happened

This is an interlocutory stay appeal arising from parenting proceedings. The mother, Ms Aldridge, appealed to the Full Court against the Chief Federal Magistrate's (CFM) refusal to grant a stay of parenting orders made after a contested trial on 9 February 2009. The orders required that the child, A (aged about 3 years 4 months), spend progressively increasing time with the respondent, Ms Keaton, including overnight contact every third weekend (Reasons: Introduction [1]–[7]; Background History [6]).

The mother filed notice of appeal against the substantive parenting orders (20 February 2009) and then, on 11 March 2009 (amended 13 March), sought a stay of the contact provisions pending that appeal. The CFM refused the stay on 9 April 2009. The mother appealed that refusal (EA 37 of 2009). The Full Court heard the stay appeal together with the substantive appeal and, after reserving judgment, dismissed the stay appeal on 19 June 2009 (Orders; Reasons: Introduction [6]–[8]; Orders).

Key factual features that informed the CFM's and Full Court's decisions were: the parties' prior same‑sex relationship and joint involvement in artificial conception procedures (Background History [2]–[3]); the child's prior contact history with the respondent including periods of overnight care before the reduction of visits by the mother (Background History [5]); and the existence of interim orders (August 2008) that had the child spending three hours each Saturday with the respondent (Background History [6]). After the trial orders (9 February 2009) the child began spending increased time with the respondent from 11 April 2009, moving to two full days and then to an every third weekend overnight arrangement (Background History [7]).

The CFM refused the stay principally because he concluded that continuation and gradual increase of contact was in the child's best interests and that stopping or curtailing contact risked disrupting an existing warm relationship between the child and the respondent (CFM's 'Best interests' reasons quoted in Full Court Reasons, reproduced at Reasons: paragraphs 51–56). The Full Court reviewed that exercise of discretion and found no appealable error (Reasons: Discussion and Conclusion).

Why the court decided this way

Two streams of reasoning underpinned the Full Court's decision.

First, the standard of appellate review: the Full Court emphasised that this was an appeal from a discretionary judgment and that appellate intervention is limited. Where the dispute is essentially about weight and evaluation of evidence about relationships, an appellate court is reluctant to overturn a trial judge's assessment unless an error of law or other appealable error is established (see Reasons: "This is an appeal from a discretionary judgment" and the authorities cited).

Second, the substance of the stay analysis: the Full Court accepted the CFM's fact findings and his evaluative conclusion that stopping or significantly reducing the respondent's contact pending appeal would be potentially more harmful to the child because it risked another break in a 'warm and significant attachment' (CFM's reasons at quoted paragraphs [51]–[56], reproduced and relied on by the Full Court; see Reasons: Chief Federal Magistrate's Stay Reasons and Discussion). The Full Court noted the stay factors to be weighed (the applicant's onus, balance of convenience, risk of appeal being rendered nugatory, preliminary assessment of the strength of the appeal, and, importantly, the child's best interests) and concluded that the CFM had appropriately considered those factors and reached a defensible conclusion.

The Full Court also rejected arguments that the CFM had given inappropriate weight to the family consultant's observations or had misapplied s 60CC or s 65C(c) when dealing with a non‑parent person concerned with the child's care. The Court found the CFM had applied relevant statutory considerations and recent authority on how to approach best interests in cases where one party is not a legal parent (Reasons: Chief Federal Magistrate's Stay Reasons [8]; Discussion).

Because no appealable error was demonstrated in the CFM's exercise of discretion, the Full Court dismissed the stay appeal (Reasons: concluding sentence).

Before and after state of the law

Before this decision, the law governing stays in family law and the limits of appellate interference with discretionary decisions were settled: the High Court and appellate courts had repeatedly emphasised restraint in upsetting discretionary findings (House v The King; Gronow v Gronow), and principles for granting stays (Myer Emporium, Alexander v Cambridge Credit, Jennings, Clemett, JRN & KEN) were established and routinely applied in parenting contexts.

This Full Court decision applies those settled principles to the particular tensions that arise in parenting‑order stay applications: it reaffirms that the best interests of the child may, in some cases, require refusal of a stay even where the stay would maintain a pre‑order status quo (the Court expressly cites and follows the reasoning in K & B [2006] FamCA 848 that status quo is not an absolute presumption in stay applications involving children). The decision therefore reinforces a practical rule: where continued contact is likely to protect a child's existing attachment, courts may properly refuse a stay to avoid the potentially greater harm of disrupting that attachment.

After this decision, practitioners should expect that stay applications in parenting matters will be assessed with a clear emphasis on the child's welfare and the potential disruptive effects of altering arrangements already found to be in the child's best interests. The ruling sits comfortably with pre‑existing authorities and does not create new law so much as apply established stay and discretionary‑review principles in the family law context.

Key passages with plain-English translation

Passage (Full Court): "This is an appeal from a discretionary judgment. There are well established principles on the limits on interference by an appellate court..." (Reasons: Applicable principles).

Plain‑English: The trial judge had a choice to make. Appellate courts will not normally interfere with such choices unless there is a clear legal mistake or the decision is plainly unreasonable.

Passage (Full Court) listing stay principles: including the onus on the applicant, entitlement to rely on a judgment, risk of making an appeal nugatory, best interests of the child.

Plain‑English: When someone asks the court to stop orders while they appeal, they must show a real reason. The court must balance the benefit of the existing orders against possible harm to the child, and ask whether continuing the orders would make any successful appeal meaningless.

Passage (CFM quoted and adopted by Full Court): "In all the circumstances I believe it is in the child's best interests to continue spending time with the Respondent periodically on the basis set out in the orders... it would seem to be potentially much more harmful to the child for there to be another break in her relationship with the Respondent..." (CFM Reasons [51]–[56], reproduced in Full Court Reasons).

Plain‑English: The trial judge found the child had an important relationship with the respondent; removing or reducing contact while waiting for appeal would likely hurt the child more than letting the relationship continue.

Passage (Conclusion): "There being no appealable error the appeal against the refusal of the stay should be dismissed."

Plain‑English: The Full Court found nothing wrong with the trial judge's decision to refuse the stay, so the mother loses this appeal.

What fact patterns trigger this precedent

This decision is directly applicable where:

A non‑parent carer (for example, a former partner who helped raise a child) has established a warm, significant relationship with the child, and the trial judge has ordered contact that would continue or increase such contact;
The parent/appellant seeks a stay of parenting orders pending appeal on the basis that continued contact would prejudice the parent's case on appeal or alter the child's attachments;
The trial judge has exercised discretion having considered the child's best interests and relevant stay factors (onus, balance of convenience, risk of rendering appeal nugatory, strength of appeal);
There is a history of prior contact, potential for disruption to the child's routines, and evidence that withdrawal of contact would cause significant adjustment.

Practically, lawyers should expect that stay applications in such factual matrices will face a high hurdle because courts will prioritise avoiding disruption to established child attachments.

How later courts have treated it

The Full Court explicitly relied upon and cited existing authorities (House v The King; Myer Emporium; K & B and others). The decision itself reiterates and applies those precedents rather than purporting to depart from them. Subsequent family law stay applications will treat this decision as follows:

As confirming that s 60CC considerations are central to stay applications involving children, and that continuation of contact may outweigh general stay considerations;
As endorsing the proposition from K & B that maintaining the status quo is not always in a child's best interests; where the trial judge finds the existing or proposed regime preferable, a stay may be refused;
As an application of conventional appellate restraint in discretionary matters.

(Practitioners should search post‑2009 authorities for direct citing of this Full Court decision to trace subsequent judicial treatment; this decision itself contains the core statements upon which later courts will rely.)

Still-open questions

Quantification of "disruption": The judgment affirms that interruption of contact can be more harmful, but does not supply a precise threshold for when disruption outweighs other stay factors. How to quantify disruption on particular facts remains a matter for trial judgment.
Interim escalation schedules: The case involved planned graduated increases in contact. The Court accepted that stopping escalation could be problematic. But the decision leaves open exactly how granular courts should be when tailoring limited stays (for example, partial stays that permit minimal continuing contact while halting further escalation).
Weight to expert observations: The Full Court accepted the CFM's use of the court‑appointed family consultant's observations. But the precise demarcation between permissible fact‑finding from a consultant's report and overreliance on non‑clinical "attachment" descriptions remains fact‑sensitive and open to argument.
Interaction with appeals that may result in remission or re‑hearing: The mother argued that prolongation of proceedings and possible remittal could entrench relationships such that an eventual successful appeal would be nugatory. The Full Court recognised the risk of nugatory appeal as a factor but found it outweighed by child welfare considerations on the facts. How courts should weigh long delay/remission risk in different factual matrices could remain contested.
Non‑parent status and s 60CC scope: The Full Court accepted application of s 60CC considerations to a non‑parent under s 65C(c) but did not exhaustively analyse the limits of that approach. Future cases may further delineate the statutory boundaries in complex family structures.

In practice, this Full Court decision mandates careful, factually detailed submissions on the child's best interests when pressuring for stays in parenting matters, and it confirms that appellate courts will demand demonstration of appealable error before disturbing discretionary stay decisions made to protect established child attachments.

Judgment (26 paragraphs)

[1]

These proceedings relate to a dispute between the mother, Ms Aldridge ("the mother") and her former partner, Ms Keaton ("the respondent") about parenting orders for the child, A, presently aged 3 years 4 months.
The parties were involved in contested proceedings before Chief Federal Magistrate Pascoe on 25 and 26 November 2008. His Honour published his reasons for judgment and made orders on 9 February 2009. The orders provide, inter alia, that A spend time with the respondent for three hours each Saturday commencing on 14 February 2009 and gradually increasing to overnight every third weekend of the month from 10.00 am on Saturday to 4.00 pm on Sunday.
The mother had opposed all the parenting orders sought by the respondent and on 20 February 2009 she filed a Notice of Appeal against the orders made 9 February 2009. Essentially these orders are the parenting orders which provide for the child to spend time with the respondent.
On 11 March 2009, as amended on 13 March 2009, the mother made an application to stay the orders of 9 February 2009. Specifically the mother sought to completely stay the orders relating to any time the child would spend with the respondent. In the alternative if a complete stay was not granted she sought that the respondent's time with the child be limited to three hours each month.
The Chief Federal Magistrate refused the mother's stay on 9 April 2009.
On 14 April 2009 this appeal was filed.
The stay appeal was heard at the same time as the substantive appeal on the basis that if it was found to have merit there would be a stay of the existing orders, or in the alternate, orders that the child spend three hours each third Saturday of the month with the respondent pending delivery of the substantive judgment.
At the hearing of the stay appeal we reserved our decision. We indicated we would either pronounce our orders on 19 June 2009 and publish our reasons shortly thereafter, or if we were able to do so given other hearing commitments during the sittings, make orders and publish our reasons.

[2]

The background facts are found in his Honour's substantive judgment and, insofar as they relate to this appeal, are not controversial.
The parties met in 1998 and commenced an intimate sexual relationship in September 2001. The parties remained committed to a relationship of some nature until they separated in November 2006.
The child was born as a result of artificial conception procedures undertaken by the mother in March and April 2005. In May 2005 she became pregnant and gave birth to the child in February 2006. The respondent was involved in many aspects of the artificial reproduction program.
The mother moved into the respondent's home in January 2006 in preparation for and following the child's birth. However, after disagreements concerning parenting, the mother and child went to live in her parents' home in November 2006.
Between late 2006 and September 2007 the respondent had visits with A, including overnight visits. However, the mother then reduced the visits to daytime only. The last time the respondent saw the child until interim orders were put in place in August 2008 was on 16 February 2008.
The interim orders of August 2008 provided for the child to spend three hours each Saturday with the respondent.
As a result of the orders of 9 February 2009 made after the substantive trial and on 11 April 2009 the child began spending six hours each alternate Saturday with the respondent. The orders then anticipate she spends time with the respondent every third weekend of each month from 10.00 am Saturday to 4.00 pm Sunday.

[3]

GROUNDS OF APPEAL AGAINST THE REFUSAL OF THE STAY

[4]

The grounds of appeal as set out in the Notice of Appeal filed 14 April 2009 are as follows:
1. His Honour failed to consider the potential detriment to the child of continuing the Orders for time between the child and the Respondent in circumstances where those Orders may be vacated on Appeal
2. His Honour failed to take into account that the timing of the hearing of the Appeal is not the significant time frame and that consideration should also be given to the time frame associated with a successful appeal, including the potential remission for re-hearing and times involved in the delivery of judgment(s) { 49}.
3. His Honour gave undue weight to the existence of a potential "attachment" between the child and the Respondent in circumstances where there was no evidence of a clinical attachment between the child and the Respondent { 14}.
4. His Honour gave undue weight to discussions between the parties as to the possibility of the Respondent becoming a co-parent in the child's life { 43}.
5. His Honour made the following findings without evidence or against the weight of evidence:

[5]

(a) That if a Stay, or partial Stay, were granted then it would be far more likely to render an appeal nugatory because of the difficulties in re-establishing a relationship between the child and the Respondent { 16}.

[6]

(b) that, by implication, the stress on the Applicant caused by not granting a Stay would be lessened { 21}.

[7]

(c) that by not granting a Stay the Applicant will have less interaction with the Respondent than had been the case to the date of the hearing of the Stay application { 21}.

[8]

(d) that there was no danger to the child arising out [sic] an incident on 7 March 2009 or, by implication, that the mother's anxiety arising therefrom was unreasonable { 22}.

[9]

(e) that it is potentially more harmful to the child for there to be another break in her relationship with the Respondent { 54}.

[10]

His Honour erred in his assessment of the merits of the Grounds of the Appeal filed by the Applicant in proceedings EA22/2009.
His Honour failed to address, or fully consider, the merits of the following Grounds of Appeal filed by the Applicant in proceedings EA22/2009:

[11]

His Honour failed to consider the effect of refusing a Stay in that time between the child and the Respondent would not simply continue but would graduate in discrete stages before becoming 'overnight' { 49; 55; 56}.
His Honour wrongly apprehended that the next escalation of time between the child and the Respondent would occur in November 2009 { 49} when in fact, by operation of the Orders made 9 February 2009, the next escalation was on 11 April 2009 and then on 20 June 2009.
The decision to not grant the Stay in the terms sought, or in any other way was plainly unreasonable:-

[12]

(a) there was no consideration of the long term impact on the child of a relationship with the Respondent being continued and potentially entrenched in circumstances where the arrangements provided in the Orders of 9 February 2009 may be reversed on Appeal.

[13]

(b) there was no consideration of one of the consequences of a successful appeal, that being the potential of a remission of re-hearing, leading to a much longer period before the matter might be resolved { 47, 48}.

[14]

His Honour was in error and his discretion miscarried when he found that refusing to grant the Stay in the terms sought, or in any other way was in the best interests of the child.
His Honour was in error when he relied upon the evidence of Martin O'Grady, Family Consultant in support of the existence of an attachment between the child and the Respondent.
The following findings of His Honour were not supported by any evidence:-

[15]

(a) that the parties may or may not at a particular time have been in a de facto relationship for the purposes of the Act { 44}.

[16]

(b) that the Orders made on 9 February 2009 solved the conflict between the parties { 31}.

[17]

His Honour was in error in asserting that a trial court may have regard to all of the circumstances set out in s.60CC as relevant to determining the best interests of a child where one of the parties is not a parent of the child { 44}.
His Honour was in error and his discretion miscarried in application of Section 65C(c) of The Family Law Act 1975, namely, he wrongly compared the subject case to one involving a grandparent or relative of a biological parent { 44}.
His Honour erred in failing to take into account the stress upon the child of the existing parenting orders and her unwillingness to visit the Respondent. { 50}.
His Honour erred in his assessment of:

[18]

(b) the stress and potential hardship to the Applicant of not granting a Stay, or a limited Stay { 20, 21, 50, 54, 55} and the consequent detriment to the best interests of the child.

[19]

His Honour was in error in his application of Section 60CC of the Family Law Act 1975. { 33-44}.

[20]

APPLICABLE PRINCIPLES RELATING TO THE STAY APPLICATION

[21]

This is an appeal from a discretionary judgment. There are well established principles on the limits on interference by an appellate court with such a judgment (see House v The King [1936] HCA 40; (1936) 55 CLR 499; Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513; (1979) FLC 90-716).
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; ; 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:

[22]

The Chief Federal Magistrate commenced his reasons for judgment by explaining the relevant law. Importantly, he stated that the principles which govern the granting of a stay involve an exercise of discretion.
His Honour noted that the mother relied on two affidavits in support of her application, sworn by her on 12 March 2009 and 3 April 2009. The respondent relied on an affidavit sworn by her on 31 March 2009.
Referring to whether the refusal of a stay would render a successful appeal nugatory or make it impossible or impracticable to restore the position, he concluded that it would be likely to be more difficult to re-establish the existing warm and significant attachment between the respondent and the child if it was ended or significantly limited rather than if it was allowed to continue as he had proposed.
He accepted there would be hardship for each party irrespective of the order he made.
His Honour then carefully considered each of the mother's grounds of appeal.
He identified that the first and a number of the other grounds related to the weight he had given to certain evidence. He, again correctly in our view, set out an appeal court's reluctance to overturn a first instance decision on grounds which only involved conflicting assessments of matters of weight.
Referring to the other grounds of appeal his Honour dealt with the complaint that he had accepted the evidence of Martin O'Grady, Family Consultant. Mr O'Grady was the Court appointed expert. He pointed out he had not been affected by the presumption Mr O'Grady had wrongly held that both parties were parents. He had simply accepted Mr O'Grady's observations of the relationship between the respondent and the child.
He also dealt with the complaint he had erred in principle in his application of s 60CC of the Family Law Act, 1975 (Cth) ("the Act") citing recent authority about possible approaches in circumstances where one party is not a parent but, as here, is a person concerned with the care, welfare or development of the child of the Act).

[23]

During the course of arguing both appeals very little time was taken up with oral submissions relating to the stay appeal. Some written "global submissions" were provided by the mother in relation to the stay appeal. The nub of these written submissions is that there needs to be special consideration given to the interests of the child, in particular, relating to the following circumstances:
- from August 2008 to the date of the appeal the child has had weekly contact with the respondent;
- the time she spends with the respondent has increased and under the current orders will continue to increase;
- the next increase to two full days of 10.00 am to 4.00 pm on Saturday and Sunday every third weekend is significant; and
- the child is asking why she has to go.
The mother says the best interests of the child are promoted by maintaining minimal contact periods until the appeal has been determined. There was some concession that it was better not to simply bring all time that the child spent with the respondent to an abrupt end, but rather there be a phasing out of the time.
Given it is accepted that the best interests of children are to be given at least significant consideration in these applications it is helpful to examine a number of matters relating to the granting of a stay in that context.
To not accede to the granting of a complete or limited stay means a continuation and perhaps further development of a relationship between the respondent and the child that his Honour found to be warm and loving. We find that he did both consider and appropriately analyse the child's position.
His Honour was aware of the mother's stress but even considering this he found it better for the child to maintain her relationship with the respondent. We discern no error of discretion in his Honour's conclusion that to stop or limit the time spent with the respondent may result in greater disruption to her.
The position of the mother before his Honour was that if a greater attachment between the respondent and the child was allowed to develop then this fact may impact on her case at a re-hearing.
As we have already noted, however, at the hearing of the stay appeal the mother did not suggest the child's time with the respondent should come to an abrupt halt pending the determination of the substantive appeal rather that it should be gradually reduced before ceasing altogether if the substantive appeal was allowed.

[24]

The granting or refusal of a stay involves an exercise of discretion by a trial Judge. Whilst such discretion must be exercised judicially, in cases involving children, we accept that from time to time circumstances in existence at the date of the orders, or which occur from the date of orders until the hearing of a stay application, may be very relevant matters to be considered in the exercise of discretion in determining whether or not to grant a stay. The interests of children would not be promoted by an inflexible requirement or presumption in every case to maintain the status quo prior to the making of orders the subject of the stay application, and to ignore unsatisfactory arrangements at the time of the orders, or significant events which have occurred after the making of those orders.

[25]

His Honour did consider the option of a limited stay with the child having minimal contact with the respondent essentially based on the mother's anxiety. The Chief Federal Magistrate rejected that option, in our view appropriately. The mother had left the child with the respondent when it had suited her previously and he had decided it was best to continue on with the regime he had set out rather than run the risk of new regimes and adjustments being imposed immediately and possibly again after appeal. There is no suggestion in this case of maintaining a satisfactory status quo. The orders envisage an increasing regime and the mother proposes a substantial reduction of the present regime.
There is nothing to suggest his Honour ignored unsatisfactory arrangements or that there had been significant events occurring after the making of his trial orders that were not taken into account.
The stay appeal is essentially a challenge to his Honour's exercise of discretion and the weight he attributed to various matters. In this regard, we do not accept that the Chief Federal Magistrate erred in the exercise of his discretion in considering and weighing matters relevant to the grant or refusal of the stay. There being no appealable error the appeal against the refusal of the stay should be dismissed.

[26]

I certify that the preceding thirty nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Alexander v Cambridge Credit Corporation

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