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MOTHER SEEKS TO STAY COURT ORDER SO SHE COULD HAVE UNSUPERVISED TIME WITH HER CHILDREN

Fairfax & Fairfax [2021] FCCA 636 (30 March 2021)

This is an application for stay of parenting orders filed by the mother so that she could spend supervised time with her children.

Facts:

The court made orders on 27 January 2021 for a recovery order, confirmed the order for the children to live with their father, and suspended the order for the children to spend time with their mother. The order for the children to communicate with the mother remained in place.

The mother sought to stay the orders made on 27 January 2021. She alleged that the father had left the children unsupervised. That matter had been raised by the mother in previous interim proceedings where she argued that the children should live primarily with her given the father’s failure to adequately supervise the children. The circumstances surrounding that issue were that the father was a farmer and the children lived on the former matrimonial home which was situated on the farming property. Due to the mother’s conduct, the father had obtained a Protection Order in August 2020 and the children were placed on that order. The mother had been required to find alternate accommodation other than the farming property.

The mother maintained that the parenting orders were a breach of her human rights and could not be justified in the best interests of the children. She maintained she had been the primary carer for 13 years and was well qualified to care for the children.

The father opposed the stay of the orders of 27 January 2021 the result of which would be that the children would spend time with their mother unsupervised. He submitted that there had been a flagrant breach of Court orders. He relied on the fact that he had written to the mother on numerous occasions through his lawyers and made allegations that she was in breach of Court orders requesting changeover of the children during the time they were being withheld by her however she refused to comply with that request.

He raised a concern that he invited the mother to return the children to him prior to the police executing the recovery order in January 2021 to avoid any distress for the children in police attending their home and removing the children from their mother’s care. The father said the mother refused his request. The mother denied she refused any request.

The father said on 18 December 2020 the Magistrates Court delivered judgment and made a Protection Order for a period of 5 years with the father as the aggrieved person. He deposed that he made numerous attempts to request the mother to comply with the orders made on 17 September 2020 during the time she withheld the children and she refused.

Issue: Should the court grant grant the application by the mother to stay the orders made by the court pending the appeal?

Law:

  • Pursuant to Rule 22.11(1) of the Family Court Rules 2004, the filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from unless otherwise provided by a legislative provision.
  • Sub rule 22.11 (2) of the FC Rules provides that if an appeal has been started, or a party has applied for leave to appeal against an order, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application relates.
  • Rule 44.10 of the  Federal Circuit Court Rules  2001  provides that “the Court may, at any time, grant, discharge or vary a stay of the proceedings to which an application for an order to show cause relates”.

Analysis:

The applicant failed to establish a proper basis for granting a stay of the orders of 27 January 2021. The court is unable to stay the recovery order as that order has been executed and is now spent. The court remains concerned about the mother’s conduct in failing to arrange a hand over of the children with the father prior to police executing the recovery order. There was ample opportunity to do so. The mother acted contrary to the children’s best interests. She said herself her daughter was distressed and terrified.

Regarding the order the court made to suspend the mother’s time, in giving effect to an order for a stay of the orders made in January 2021  that would enliven Order 3 (k) of the orders of 17 September 2020 and the children would be required to spend unsupervised time with their mother. The court formed the view that it was not in the children’s best interests to be placed in those circumstances as it was likely that the mother would not comply with any order for the children to live with their father and the court remains concerned that the mother would not return the children to their father (yet again). In addition, the court remains concerned whether the children would be permitted to attend school whilst in their mother’s care.

Conclusion: The application to stay the order is hereby refused.

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