Monday, 29 June 2009

Lesbian mother fails to stop relationship between her former partner and the child - again

Some months ago I blogged about the Federal Magistrates Court decision in Aldridge and Keaton, when Chief Federal Magistrate Pascoe determined that the the time of when a de facto relationship existed between a lesbian couple for the purposes of s.60H of the Family Law Act was at the time of conception, not birth. This was important, because the effect of s.60H meant that Ms Keaton, as she was not in a de facto relationship at conception was not a parent of the child for the purposes of the Family Law Act.

The mother, Ms Aldridge opposed Ms Keaton spending any time with the child, aged 3, and appealed against the orders that allowed for that time.

At the same time, Ms Aldridge sought a stay or freeze order of the orders allowing that time. Pascoe CFM also refused that, so Ms Aldridge also appealed that refusal to grant a stay.

The stay appeal has recently been heard by the Full Court of the Family Court. Ms Aldridge was unsuccessful.

Reasons by the Chief Federal Magistrate in refusing the stay

His Honour stated:


I have given extensive reasons as to why I decided it was in the child’s best interests to spend time with the Respondent notwithstanding the Applicant’s desire to exclude the Respondent from the child’s life and to do so on a graduated basis leading to overnight contact once a month. The issue of communication between the parties was raised at trial and there was considerable evidence that the parties could communicate civilly despite occasional difficulties and that the existing regime of weekend contact was working satisfactorily despite some stress on the part of the Applicant.

I also provided for telephone contact so that the child could have contact with the Respondent periodically between visits and I note that this telephone contact was greatly restricted as opposed to the contact that may be appropriate for older children. I weighed very carefully all of the factors in relation to the relationship between the Applicant and the Respondent including the orders made by Federal Magistrate Coakes on the application made by the Respondent and the orders made when the Applicant made an application for a stay of those orders.

Ms Knox argued that it was not in the child’s best interests to have contact with the Respondent either at all or in the alternative for a very limited period because the final conclusion of the appeal may be that the child has no contact with the Respondent.

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. The child is only 3 years old and has already had a gap of 6 months in her relationship with the Respondent because of the Applicant’s decision to stop contact. The child has been spending regular time with the Respondent since August last year and it would seem to be potentially much more harmful to the child for there to be another break in her relationship with the Respondent, if at the conclusion of the appeal process time with the Respondent was to be resumed which I believe, as outlined above, is in the child’s best interests and therefore is the most likely outcome.

I considered a limited stay of order 3(d) given the Applicant’s anxieties. However, in light of the evidence given at trial that the Respondent had after separation had the child for long periods, and the Applicant even after expressing concerns about the child’s safety had on occasion left the child in the care of the Respondent overnight, I decided that such an interruption to the contact regime was not warranted, and was not in the child’s best interests.

Accordingly, if I were to grant the stay and stop contact between the Respondent and the child or in the alternative limit that contact to three hours per month, there is in my view, potentially a much greater adjustment for the child who may by the time an appeal is heard have established new routines and lost her existing relationship with the Respondent.

Stay Principles

The Full Court of the Family Court helpfully set out the principles of stay applications:

The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:
  • the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;
  • a person who has obtained a judgment is entitled to the benefit of that judgment;
  • person who has obtained a judgment is entitled to presume the judgment is correct;
  • the mere filing of an appeal is insufficient to grant a stay;
  • the bona fides of the applicant;
  • 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;
  • 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;
  • some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
  • the desirability of limiting the frequency of any change in a child’s living arrangements;
    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;
  • the best interests of the child the subject of the proceedings are a significant consideration.
Result?


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.

2 comments:

  1. The conception/birth thing is interesting - I'm guessing the reasoning is that if one was not a party to the decision to conceive the child, then that child is not a 'child of the relationship'?
    So would this have implications for child support?

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  2. The significance is the drafting of section 60H of the Family Law Act. If you go to the post of the original judgment, you'll see why that was important. It has an impact about whether someone is a "parent" under the Family Law Act, as certain presumptions arise, including considering equal time. Not a parent, no such automatic consideration. If not a de facto partner when the child was conceived can have implications for child support.

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