Mother Applies for Stay of Orders Against Father
Berryman & Berryman (No 2) [2021] FCCA 1608 (13 July 2021)
The mother who used to have primary care of children did not send the children to father when the Court ordered change of primary care to the father. The mother filed an application to stay the final parenting orders. The father opposes such application asserting that the children are being exposed to distress. The Court ruled on this dispute having assessed what's in the best interests of the children and the weight of the evidence provided by the parties.
Facts:
On 23 June 2021, the Court ordered that the two (2) children of the parties, X born in 2009 and Y born in 2013, move out of their mother’s primary care and into their father’s primary care.
The mother then sought orders providing for the change of primary care be stayed pending the hearing and determination of her proposed appeal against those orders. However, such an application was made in the absence of a Notice of Appeal. Interim orders had provided for her to have primary care of the children, and that they spend time with their father on school holiday periods and potentially during school terms.
The father opposes any grant of leave to bring the stay application, as well as opposing the stay of the orders. By Application in a Case filed on 5 July 2021, he seeks a recovery order. This arises because, having travelled to Melbourne airport to collect the children on 5 July 2021 pursuant to my final orders, the children did not in fact arrive.
Issue:
Whether or not the mother's application for stay should be granted.
Applicable law:
Family Law Act 1975 (Cth), Part VII - provides that the Court should treat the child's best interest as the paramount consideration in making a parenting order.
Family Law Act 1975( Cth) r 22.11 - a party who has started an appeal or applied for leave to appeal may apply for a stay before the primary judge who determined the proceedings.
Analysis:
While generally an application for a stay should not be made absent the filing of a Notice of Appeal, a leave to apply for a stay is very much bound up in the consideration of the strength or merit of the proposed stay application. In the case at bar, the mother submitted that it would cause great emotional stress on the children if they had to live with the father.
The interests of children are not 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 ignoring unsatisfactory arrangements at the time of the orders, or significant events which have occurred the making of these orders. The mother has taken the children to see a Child and Family Consult/Therapist, Ms E without reference to the father which is clearly of neglect to previous orders.
Conclusion:
The Court ordered to dismiss the Mother’s Application in a Case filed 1 July 2021. A Recovery Order issue is directed to the Marshal of the Federal Circuit Court, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of Australia requiring them to find and recover the children X born in 2009 and Y born in 2013 and to deliver the said children to the Applicant Father, Mr Berryman, and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said children may be found. The Recovery Order is to lie on the file to be uplifted upon the written request of the Father’s solicitor to the chambers of His Honour Judge Betts. All extant costs applications are adjourned to 2 September 2021 at 9.30am for hearing (30 minutes allocated).