MOTHER SEEKS TO STAY COURT ORDER FOR HER AND THE CHILDREN TO RETURN MELBOURNE TO SPEND TIME WITH THE FATHER
Donalds & Donalds (No.2) [2021] FCCA 667 (11 March 2021)
In this matter, the court made interim orders that the Mother has appealed. The Mother now seeks a stay of the court’s orders, pending that appeal.
Facts:
The parties have two children, X, who will be two years old and Y, who has very recently been born in 2021, since these proceedings were issued. The parties separated late last year while the Mother was still pregnant. The Mother left the parties’ home in Melbourne and unilaterally relocated to New South Wales. It is her case that she was fleeing family violence and seeking the support of her family.
The Father strenuously denies the allegations of family violence. On 21 December last year, the court ordered that the Mother return to Victoria with X, by 31 March 2021.
She seeks to stay a number of orders, including the order requiring her to return and also the orders in relation to X’s time with the Father, orders requiring the parties to provide their addresses to the Independent Children's Lawyer, the order that they keep each other informed as to serious illnesses or injuries as suffered by the child and also the orders for trial.
She asserts that she has no support in Melbourne whereas she says she has substantial and significant support from family and friends in New South Wales.
She says it will be extremely disruptive if she and the children have to return and that that would be a significant change for the children, and for X in particular. She says that changes ought to be minimized and asserts that she has an arguable case on appeal. She reinforced that her medical conditions and her autoimmune issues are such that she says a return to Melbourne is not feasible and that her mental health diagnoses of PTSD and depression make it untenable for her to be required to return. She says, effectively, that the children’s best interests will be met by the stay being granted.
The Father opposes the stay. He submits that he is entitled to the benefits of judgment. He asserts that the Mother’s appeal as drafted does not have any reasonable prospect of success and discloses no arguable case. He says that the children will be retained in the mother’s primary care so even if a stay is not granted and they have to return, that does not include a change of residence so it would not be overly disruptive to the children.
Issue: Should the court order be stayed in favor of the mother pending appeal?
Analysis:
It would be extremely inconvenient for the Mother if she was required to return. She raises issues about her housing, her support in the event that she was required to return.
The court has to consider whether an appeal will be rendered nugatory if a stay is not granted. This is to be taken into account as a substantial factor. In the court’s view, it would not be. There is nothing that would be done by the Mother having to return that couldn’t be undone if her appeal was ultimately successful, although she says her mental health will be negatively impacted if the return order is not stayed.
The Father says that if there is no return, that the children will not have time with their Father and that will deprive X the opportunity of maintaining or re-establishing his relationship with the Father and it would mean that Y will not really have the opportunity of meeting his Father or establishing any relationship with him. However, allowing the Mother to remain would mean that she would be able to remain supported by her family and the Independent Children's Lawyer urges the court to grant the stay on that basis.
The court hopes that the Father is able to travel to Suburb D to see the children. That would be obviously, on a supervised basis in the meantime. The borders are now open between New South Wales and Victoria and so there are no COVID restrictions on travel, which certainly were in place or about to come into place in December last year. So subject to the question of finance, the Father would be able to travel to New South Wales to spend time.
Conclusion: Application of the mother to stay the court order is hereby granted.