AINSWORTH & YUEN (No.3)
[2020] FCCA 3192
•7 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AINSWORTH & YUEN (No.3) | [2020] FCCA 3192 |
| Catchwords: FAMILY LAW – Parenting – appeal filed – stay application. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC |
| Cases cited: Clemett & Clemett (1981) FLC 91-013 M v M (1988) 166 CLR 69; FLC 91-979 |
| Applicant: | MR AINSWORTH |
| Respondent: | MS YUEN |
| File Number: | BRC 4054 of 2016 |
| Judgment of: | Judge Coates |
| Hearing date: | 7 October 2020 |
| Date of Last Submission: | 7 October 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 7 October 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr H. Cremin |
| Respondent: | Self-represented |
| Solicitors for the Independent Children's Lawyer: | Jenny Boulton Solicitor |
ORDERS
That the Application in a Case filed 25 September 2020 be dismissed.
That the Independent Children’s Lawyer’s costs of today be reserved.
IT IS NOTED that publication of this judgment under the pseudonym Ainsworth & Yuen (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 4054 of 2016
| MR AINSWORTH |
Applicant
And
| MS YUEN |
Respondent
REASONS FOR JUDGMENT
This judgment was delivered orally and has been corrected for written comprehension.
Final orders for a young child, X, were made after a trial which ran over 14, 15 and 16 July 2020.
The effect of the orders was to change the circumstances of the child so that she lived with the mother and had much more time with the father.
I will just describe it in those terms.
An order for equal shared parental responsibility was made.
The orders for the child increase her time with the father, against the mother’s wishes.
An appeal was filed in the matter on 13 August 2020.
A stay application was made on 25 September 2020.
The stay application was brought by the mother who seeks a return to orders made on 15 November 2018 as stated in her stay application and I have been provided with a document, confirming that the mother also, seeks an order for sole parental responsibility and that the father be restrained from contacting health professionals to give contrary instructions to those of the mother or attempting to deny the child, X, from having all necessary medical or health procedures.
The father opposes the stay and the Independent Children’s Lawyer opposes the stay.
The grounds of appeal are 11 in number and I am going to paraphrase them:
a)That I failed to deliver adequate reasons;
b)That I erred in the application of the s.60CC(2) of the Family Law Act 1975 (“the Act”) considerations;
c)That I did not deal properly with family violence in the reasons;
d)That I erred in the understanding of the evidence;
e)That I erred in refusing to make findings with regard to family violence;
f)I erred in regard to the making of parenting orders when I had not determined the magnitude of the risk presented by the father’s alcohol usage – this says abuse, but I determined that I could not make that finding, but there was certainly high alcohol usage;
g)That I applied an incorrect test on finding family violence on the application of the presumption of equal shared parental responsibility;
h)That I failed to take into account the risk as to the father abusing alcohol when the child is in his care;
i)That I did not consider other sections in s.60CC(3) of the Act, being (c), (d), (f), (i), (j), (k) and (l);
j)That I erred in my consideration of a professional witness, Ms J, and
k)That I would not deal with the issue of travelling to China.
The issues with regard to a stay have been stated in numerous cases.
The granting of a stay is discretionary. In Federal Commissioner of Taxation v Myer Emporium Limited (1986) 64 ALR 325, Dawson J said:
“It is well established by authority that the discretion which it confers to order a stay of proceedings is only to be exercised where special circumstances exist which justify the departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation pending the determination of any appeal. Special circumstances justifying a stay will exist where it is necessary to prevent the appeal, if successful, from being nugatory. Generally, that will occur when, because of the respondent’s financial state, there is no reasonable prospect of recovering moneys paid pursuant to the judgment at first instance. However, special circumstances are not limited to that situation and will, I think, exist where, for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed.”
That has been applied in that form in family law proceedings in Clemett & Clemett (1981) FLC 91-013, Nygh J said:
“In determining whether a stay should be granted, the welfare of the child is the paramount consideration. It is especially desirable that the frequency of any changes in custodial arrangements should be limited as much as possible.
…
If the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt with within a reasonable time and the present circumstances of the child are satisfactory, it will be appropriate to grant a stay of proceedings for at least a short period.”
They are guiding decisions. Various other decisions have produced lists of considerations which may be taken into account. They include that the onus of establishing a proper basis for the stay is on the applicant.
Other considerations are:
a)That the person who obtained the judgment is entitled to the benefit of the judgment;
b)That person is entitled to presume the judgment is correct;
c)The bone fides of the applicant needs to be taken into account;
d)A stay may be granted in terms which is fair to all parties;
e)Weighing the risk that an appeal may render nugatory and the benefit of an appeal if the appeal was successful;
f)Some preliminary assessment of the strengths of the proposed appeal;
g)Whether the appellant has an arguable case;
h)Obviously, as I have said, the desirability of limiting the frequency of changes in the child’s living arrangements;
i)When an appeal can be heard, and
j)The best interests issue.
I will briefly try and make an assessment of the strengths of the case.
The main thrust of the appeal seems to be that I did not determine a risk – or the magnitude of a risk occurring with regard to alcohol usage by the father.
The risk of course being to the child if he is affected by alcohol when the child is with him.
That is because I said I cannot determine the magnitude of the risk on the evidence.
Determining the magnitude of the risk comes, of course, from the High Court’s statement in M v M (1988) 166 CLR 69; FLC 91-979.
It is not always possible to determine the magnitude of a risk even though a risk is apparent.
Consequently, I put into place a set of orders which absolutely require the father to undergo testing to see if his alcohol usage is increasing and of course, is increasing to an extent where the court may consider a risk exists.
I also assessed the evidence of an expert whose professional qualifications were not challenged – Dr K – who clearly and unequivocally stated that the tests reveal the father is either not using or using very little alcohol.
I put into place a set of orders on the basis that if there was a risk, this would attend to that risk.
That seems to be a major thrust of the grounds of appeal.
It was the issue of family violence which I could not determine in considering the allegations made by the parties.
I addressed the issue from the point of view of limiting contact between the parents.
Coming from this appeal ground that I did not fully assess properly family violence, of course, is the fact the mother seeks an order for sole parental responsibility which is an order she always sought.
I did not make that order and it is one which she continues to pursue.
It is said that I have not addressed properly a number of the additional considerations in s.60CC(3) of the Act which includes subsections (c), (d), (f), (i), (j), (k) and (l), and they are:
“(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;”
It is true that I did not specifically state the particular consideration – and I sometimes do that, referring to the Act – but in viewing the judgment that I have given, I have addressed within the context of the evidence my considerations based around the stated considerations, but taking the evidence as a whole.
For example, with family violence, I addressed the allegations, but I also addressed the issue of a video which I viewed of the mother’s father poking at the father and appearing to push him.
I have stated all of that, so in my view, I have addressed not only the allegations made by her, but the general setting in which the father finds himself when he goes to the mother’s household.
Sometimes these issues set out in the considerations just cannot be taken as single solitary pieces of evidence.
The court needs to look at the whole of the manner in which the parties parent and make decisions together or when they refuse or are incapable of making decisions together.
In my view, I have addressed all of those issues, concentrating of course on the main issues which were alcohol allegations and family violence.
There are a whole lot of the appeal grounds which say that the court has not done this or the court has not done that, but looking at all this from another way – and especially the mother’s application that I revert to orders made some years ago and give her sole parental responsibility – new issues have been raised before me.
They include an allegation that the father is refusing to allow the child a hernia operation, although what the mother says is that she has been advised by two doctors about a hernia operation, that the parties have known since 2019 that the child may need a hernia operation and that her advice is that it needs to be done.
She says initial advice was that it was not going to be done when the hernia was discovered and then says the father is a health care worker, so he should know all these things.
The father says he only became aware of this on 29 September 2020 when the mother rang him and put him on to a doctor on the telephone.
He said, he wants to make further investigation.
He was criticised because it was said he wants to go back to the GP over the advice – apparently telephone advice – from a surgeon.
There is no evidence before the court as to what specialist medical advice is for this child.
It was said there was no time to obtain subpoena material from surgeons.
That is not, by the way, a matter for subpoena material.
That is a matter of a doctor giving evidence before the court.
It was put that this is merely a device for assisting the mother to get either sole parental responsibility or some measure of sole parental responsibility to make medical decisions for the child.
It was also put that the child is upset in the mother’s care and no one knows why, and so there ought be a return to orders made some years ago which were very restrictive of the father’s time.
I raised the issue of whether it is proper to raise these issues in this application because they seem to be removed from the appeal.
It was also said that this affidavit of the mother’s will be before the Full Court, but I am told by the Independent Children’s Lawyer that there is no evidence of an application made to produce new evidence.
While there appears to be some ongoing issues between the parties, the evidence is not presented as such, that the child absolutely needs as a matter of safety, an operation now.
It appears to be the case that the mother made an appointment.
It appears to be the case, she did not inform the father, and I am told it was just a medical appointment and really that I should excuse that.
That is not what the orders say.
Equal shared parental responsibility is about major issues.
Medical issues are major issues.
Whether it has taken the mother 18-months or not to get an appointment with a specialist over this issue, seems to be beside the point in that I am not told why there has been a delay.
It seems to me that if the mother is making decisions to get the child assessed, that is a breach of the equal shared parental responsibility order which I specifically made so that the father can get involved.
It seems to me if she had done that and got him involved, I would not be faced with the issue the father says he is faced with now – that he wants more information.
He said, of course he would allow the child to undergo surgery if that is what the advice is.
He is a health care worker and has some medical knowledge.
He is not a doctor or a surgeon.
As any other parent requires, he needs advice and not in a manner in which the mother proceeds to start making decisions and serving him with the results by stating “this child needs to undergo an operation” without giving the father time to investigate.
With all due respect, I do not think it is proper that simply a doctor gets on the telephone to the father to say A, B, C and D about the child’s condition.
The doctor could not know that the father is in a position at that particular time to take in what is being said – he may be at work, he may be very tired from working.
I have got no idea, but it seems to me that proper appointments need to be made so that the father can make an assessment.
I am told that if the child needs this operation, he will consent.
Simply because two parties disagree on an operation and that prevents an operation from going ahead, that is not a failure of equal shared parental responsibility. There is a result.
That happens in households where the parents are together, where they are not separated, there is simply a disagreement.
Parties and parents get around that.
The father says he will get around it by seeking proper information.
Again, I stress I am not given any proper evidence and I am given hearsay evidence of what the mother says is the case.
It seems to me that it is a way in which the mother is attempting to get around the issues going to the appeal to get a stay on the basis that the child may be at risk, which I cannot see.
It is improper to do it that way.
There are other ways of resolving those types of disputes.
Further, there was nothing before this court as to this allegation that the child is upset in the mother’s care.
There are also other issues raised.
That the child is not seeing the mother for a great deal of time is because she works.
The court was aware of her working pattern and her need to work, and mid-week time that the child has with the father is about to cease this month as he progresses through the orders to have the child spend other times with him.
I cannot see that those issues are relevant to the appeal but I needed to go over those because it was put by the Independent Children’s Lawyer, who does not support the stay, that the mother is simply pursuing what she has always pursued.
It is her right to do that, but she needs to do it properly, and that is through the appeal process.
I am told that if I do not make the stay, the orders will be rendered nugatory.
This has to do with the time the child is spending with the mother.
The orders will not be rendered nugatory.
If the decision made is overturned, it is not known what orders will be put into place.
Whatever occurs there though would be disruptive to this young child who has been caught in the dispute in circumstances where her time has been curtailed by the mother on the grounds that the father was a risk.
The issues of risk have been determined in such a way that if there is still a risk, the child will be protected.
I am not told when the appeal can be heard.
The Independent Children’s Lawyer said there is no submission that the Appeals Registrar has been contacted.
A submission was put that certain things cannot be done by the appeal registry until I make this decision.
I do not know if that is correct because I have dealt with other cases where the appeal registry has managed the appeal matter without decisions being made on stay applications within the time the appeal registry comes to deal with matters and manage matters.
I am not sure that is actually a correct submission.
I am often told when an appeal can be listed within a timeframe and I am not told anything here.
That of course is important because it helps guide this court as to what should be done.
Knowing when an appeal can be dealt with, of course, is part of the best interests decision in the sense that the courts do not want to keep putting children in a circumstance where orders are constantly changing.
The court does not want to put children in situations of risk and obviously risks can still arise and that is why I have gone down the track of analysing what I am told about the issues of the child perhaps undergoing surgery, as I have done.
The father opposes the stay.
He is not represented, so with all due respect to him, he does not understand the legal ins-and-outs of what has to be considered.
He has got some understanding in that he has got a set of orders and he is working to those sets of orders.
The child is forming that relationship with him as envisaged by the Act, in a safe manner.
I noticed that in the judgment I delivered, I not only referred to the benefit of the meaningful relationship aspect of s.60CC(2) of the Act, but I also referred to the other aspect that the court needs to be sure on the evidence that a child is protected.
It is in there, even though it is said perhaps that I have not dealt with that.
The Independent Children’s Lawyer says the mother’s appeal will not be rendered nugatory, and that seems to be based on the fact that if there is a new set of orders, there will be a new set of orders.
The other point the Independent Children’s Lawyer raised was that the appeal was filed on 13 August 2020 and there has been a delay in bringing the stay application – this application being filed more than a month later on 25 September 2020.
A court can take into account a delay, especially when a new risk is alleged, on the basis that the bona fides of the applicant may be in question.
The Independent Children’s Lawyer tells me that I really now need to look at the bona fides, because given all that I said in the judgment – which included a comment directed at the mother as to her wanting to reduce the father’s time, she certainly has not accepted the thrust of what I said, because she still wants to reduce the father’s time even though she says she wants to promote the father’s time.
I am entitled in my view to take into account that she filed the appeal and then waited well over five or six weeks before she filed the stay application.
That does not indicate a risk.
Now it may be said the issues of the hernia just became available to her.
That is not before the court because there is no evidence of why she took 18-months to get some medical advice on this hernia issue.
There is no evidence as to why she did not tell the father she was now getting such advice, which I think is very important.
All parents are concerned if their children have to undergo operations and both parties are health care workers, so they would know, no doubt, that there is always a risk for people undergoing operations and perhaps more so with a child.
The mother simply did not tell the father in any reasonable manner.
She just presented him with what I take to be a fait accompli.
That is the way her evidence [view] is cast without any supporting evidence.
The Independent Children’s Lawyer says there are numerous reasons given in the judgment and the appeal does not have a great deal of strength.
In fact, the Independent Children’s Lawyer said in her words, that it may fail.
In all those circumstances, I am not satisfied that the appeal is strongly based.
I am not satisfied as to any new risks arising for the child because of the orders giving her more time with the father.
I am not satisfied that I know when an appeal can be heard.
I am not satisfied that the mother’s appeal will be rendered nugatory simply because if the original decision is overturned, new orders at some stage may be made, but there is no guarantee that those orders will be made in the mother’s favour.
It may be that anyone else – because it would not be me then – who decides the issues, would come to the same conclusion.
On that basis, I dismiss the stay application.
I certify that the preceding one hundred and twenty-three (123) paragraphs are a true copy of the reasons for judgment of Judge Coates
Associate:
Date: 23 November 2020
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