Aldridge & Keaton (Stay Appeal)
[2009] FamCAFC 106
•19 June 2009
FAMILY COURT OF AUSTRALIA
| ALDRIDGE & KEATON (STAY APPEAL) | [2009] FamCAFC 106 |
| FAMILY LAW - APPEAL – STAY – REFUSAL TO GRANT STAY PENDING DETERMINATION OF SUBSTANTIVE PARENTING APPEAL – Whether Chief Federal Magistrate erred in exercise of discretion in refusing stay of parenting orders pending appeal – Where parties formerly in a same-sex relationship – Where Chief Federal Magistrate found that the applicant in the substantive proceedings was not a parent for the purposes of s 60H of the Family Law Act 1975 (Cth) – Where Chief Federal Magistrate found that maintenance of the relationship between the child and the applicant was in the child’s best interests – Whether Chief Federal Magistrate gave inappropriate weight to the effect on the child of the refusal of a stay pending the determination of the appeal – Whether Chief Federal Magistrate gave insufficient weight to the potential for the child’s attachment to the applicant to increase if a stay not granted, rendering nugatory any appeal – No error of discretion established – Appeal dismissed. FAMILY LAW - COSTS – Costs of the appeal against the refusal to grant a stay reserved to be determined with the substantive appeal. |
| Family Law Act 1975 (Cth) – s 60CC, s 60H, s 65C(c) |
| Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685 K & B (2006) FLC 93-288 |
| APPELLANT: | Ms Aldridge |
| RESPONDENT: | Ms Keaton |
| FILE NUMBER: | SYC | 3130 | of | 2008 |
| APPEAL NUMBER: | EA | 37 | of | 2009 |
DATE DELIVERED: | 19 June 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Boland & Crisford JJ |
| HEARING DATE: | 16 June 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 9 April 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 314 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Cleary |
| SOLICITOR FOR THE APPELLANT: | Dettmann Longworth, Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Lethbridge SC with Ms Rees |
| SOLICITOR FOR THE RESPONDENT: | Inner City Legal Centre |
Orders
That the appeal against the refusal to stay Order 1 of the orders of Chief Federal Magistrate Pascoe of 9 April 2009 be dismissed.
That the respondent’s costs be reserved and dealt with at the same time the Full Court deals with the costs of the substantive appeal.
IT IS NOTED that publication of this judgment under the pseudonym Aldridge & Keaton (Stay Appeal) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 37 of 2009
File Number: SYC 3130 of 2008
| Ms Aldridge |
Appellant
And
| Ms Keaton |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings relate to a dispute between the mother, Ms Aldridge (“the mother”) and her former partner, Ms Keaton (“the respondent”) about parenting orders for the child, A, presently aged 3 years 4 months.
The parties were involved in contested proceedings before Chief Federal Magistrate Pascoe on 25 and 26 November 2008. His Honour published his reasons for judgment and made orders on 9 February 2009. The orders provide, inter alia, that A spend time with the respondent for three hours each Saturday commencing on 14 February 2009 and gradually increasing to overnight every third weekend of the month from 10.00 am on Saturday to 4.00 pm on Sunday.
The mother had opposed all the parenting orders sought by the respondent and on 20 February 2009 she filed a Notice of Appeal against the orders made 9 February 2009. Essentially these orders are the parenting orders which provide for the child to spend time with the respondent.
On 11 March 2009, as amended on 13 March 2009, the mother made an application to stay the orders of 9 February 2009. Specifically the mother sought to completely stay the orders relating to any time the child would spend with the respondent. In the alternative if a complete stay was not granted she sought that the respondent’s time with the child be limited to three hours each month.
The Chief Federal Magistrate refused the mother’s stay on 9 April 2009.
On 14 April 2009 this appeal was filed.
The stay appeal was heard at the same time as the substantive appeal on the basis that if it was found to have merit there would be a stay of the existing orders, or in the alternate, orders that the child spend three hours each third Saturday of the month with the respondent pending delivery of the substantive judgment.
At the hearing of the stay appeal we reserved our decision. We indicated we would either pronounce our orders on 19 June 2009 and publish our reasons shortly thereafter, or if we were able to do so given other hearing commitments during the sittings, make orders and publish our reasons.
Background history
The background facts are found in his Honour’s substantive judgment and, insofar as they relate to this appeal, are not controversial.
The parties met in 1998 and commenced an intimate sexual relationship in September 2001. The parties remained committed to a relationship of some nature until they separated in November 2006.
The child was born as a result of artificial conception procedures undertaken by the mother in March and April 2005. In May 2005 she became pregnant and gave birth to the child in February 2006. The respondent was involved in many aspects of the artificial reproduction program.
The mother moved into the respondent’s home in January 2006 in preparation for and following the child’s birth. However, after disagreements concerning parenting, the mother and child went to live in her parents’ home in November 2006.
Between late 2006 and September 2007 the respondent had visits with A, including overnight visits. However, the mother then reduced the visits to daytime only. The last time the respondent saw the child until interim orders were put in place in August 2008 was on 16 February 2008.
The interim orders of August 2008 provided for the child to spend three hours each Saturday with the respondent.
As a result of the orders of 9 February 2009 made after the substantive trial and on 11 April 2009 the child began spending six hours each alternate Saturday with the respondent. The orders then anticipate she spends time with the respondent every third weekend of each month from 10.00 am Saturday to 4.00 pm Sunday.
Grounds of appeal against the refusal of the stay
The grounds of appeal as set out in the Notice of Appeal filed 14 April 2009 are as follows:
1.His Honour failed to consider the potential detriment to the child of continuing the Orders for time between the child and the Respondent in circumstances where those Orders may be vacated on Appeal
2.His Honour failed to take into account that the timing of the hearing of the Appeal is not the significant time frame and that consideration should also be given to the time frame associated with a successful appeal, including the potential remission for re-hearing and times involved in the delivery of judgment(s) {¶49}.
3.His Honour gave undue weight to the existence of a potential “attachment” between the child and the Respondent in circumstances where there was no evidence of a clinical attachment between the child and the Respondent {¶14}.
4.His Honour gave undue weight to discussions between the parties as to the possibility of the Respondent becoming a co-parent in the child’s life {¶43}.
5.His Honour made the following findings without evidence or against the weight of evidence:
(a)That if a Stay, or partial Stay, were granted then it would be far more likely to render an appeal nugatory because of the difficulties in re-establishing a relationship between the child and the Respondent {¶16}.
(b)that, by implication, the stress on the Applicant caused by not granting a Stay would be lessened {¶21}.
(c)that by not granting a Stay the Applicant will have less interaction with the Respondent than had been the case to the date of the hearing of the Stay application {¶21}.
(d)that there was no danger to the child arising out [sic] an incident on 7 March 2009 or, by implication, that the mother’s anxiety arising therefrom was unreasonable {¶22}.
(e)that it is potentially more harmful to the child for there to be another break in her relationship with the Respondent {¶54}.
6.His Honour erred in his assessment of the merits of the Grounds of the Appeal filed by the Applicant in proceedings EA22/2009.
7.His Honour failed to address, or fully consider, the merits of the following Grounds of Appeal filed by the Applicant in proceedings EA22/2009:
(a)Paragraph 2(ii)
(b)Paragraph 6(v)
8.His Honour failed to consider the effect of refusing a Stay in that time between the child and the Respondent would not simply continue but would graduate in discrete stages before becoming ‘overnight’ {¶¶49; 55; 56}.
9.His Honour wrongly apprehended that the next escalation of time between the child and the Respondent would occur in November 2009 {¶49} when in fact, by operation of the Orders made 9 February 2009, the next escalation was on 11 April 2009 and then on 20 June 2009.
10.The decision to not grant the Stay in the terms sought, or in any other way was plainly unreasonable:-
(a)there was no consideration of the long term impact on the child of a relationship with the Respondent being continued and potentially entrenched in circumstances where the arrangements provided in the Orders of 9 February 2009 may be reversed on Appeal.
(b)there was no consideration of one of the consequences of a successful appeal, that being the potential of a remission of re-hearing, leading to a much longer period before the matter might be resolved {¶¶47, 48}.
11.His Honour was in error and his discretion miscarried when he found that refusing to grant the Stay in the terms sought, or in any other way was in the best interests of the child.
12.His Honour was in error when he relied upon the evidence of Martin O’Grady, Family Consultant in support of the existence of an attachment between the child and the Respondent.
13.The following findings of His Honour were not supported by any evidence:-
(a)that the parties may or may not at a particular time have been in a de facto relationship for the purposes of the Act {¶44}.
(b)that the Orders made on 9 February 2009 solved the conflict between the parties {¶31}.
14.His Honour was in error in asserting that a trial court may have regard to all of the circumstances set out in s.60CC as relevant to determining the best interests of a child where one of the parties is not a parent of the child {¶44}.
15.His Honour was in error and his discretion miscarried in application of Section 65C(c) of The Family Law Act 1975, namely, he wrongly compared the subject case to one involving a grandparent or relative of a biological parent {¶44}.
16.His Honour erred in failing to take into account the stress upon the child of the existing parenting orders and her unwillingness to visit the Respondent. {¶50}.
17.His Honour erred in his assessment of:
(a)the level of anxiety of the Applicant {¶55}
(b)the stress and potential hardship to the Applicant of not granting a Stay, or a limited Stay {¶¶20, 21, 50, 54, 55} and the consequent detriment to the best interests of the child.
18.His Honour was in error in his application of Section 60CC of the Family Law Act 1975. {¶¶33-44}.
Applicable principles relating to the stay application
This is an appeal from a discretionary judgment. There are well established principles on the limits on interference by an appellate court with such a judgment (see House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716).
The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). 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;
·a 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; and
·the best interests of the child the subject of the proceedings are a significant consideration.
The chief federal magistrate’s stay reasons
The Chief Federal Magistrate commenced his reasons for judgment by explaining the relevant law. Importantly, he stated that the principles which govern the granting of a stay involve an exercise of discretion.
His Honour noted that the mother relied on two affidavits in support of her application, sworn by her on 12 March 2009 and 3 April 2009. The respondent relied on an affidavit sworn by her on 31 March 2009.
Referring to whether the refusal of a stay would render a successful appeal nugatory or make it impossible or impracticable to restore the position, he concluded that it would be likely to be more difficult to re-establish the existing warm and significant attachment between the respondent and the child if it was ended or significantly limited rather than if it was allowed to continue as he had proposed.
He accepted there would be hardship for each party irrespective of the order he made.
His Honour then carefully considered each of the mother’s grounds of appeal.
He identified that the first and a number of the other grounds related to the weight he had given to certain evidence. He, again correctly in our view, set out an appeal court’s reluctance to overturn a first instance decision on grounds which only involved conflicting assessments of matters of weight.
Referring to the other grounds of appeal his Honour dealt with the complaint that he had accepted the evidence of Martin O’Grady, Family Consultant. Mr O’Grady was the Court appointed expert. He pointed out he had not been affected by the presumption Mr O’Grady had wrongly held that both parties were parents. He had simply accepted Mr O’Grady’s observations of the relationship between the respondent and the child.
He also dealt with the complaint he had erred in principle in his application of s 60CC of the Family Law Act, 1975 (Cth) (“the Act”) citing recent authority about possible approaches in circumstances where one party is not a parent but, as here, is a person concerned with the care, welfare or development of the child (s 65C(c) of the Act).
Overall, it can be concluded his Honour did not consider the Notice of Appeal disclosed any identifiable grounds of appeal which disclosed significant merit.
Significantly, under the heading “Best interests of the child” the Chief Federal Magistrate explained, at paragraphs 51-56, why he considered the orders he had made were in the best interests of the child and should not be stayed. Given the importance of these findings we propose to set them out in full:
51.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.
52.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.
53.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.
54.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.
55.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.
56.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.
Discussion
During the course of arguing both appeals very little time was taken up with oral submissions relating to the stay appeal. Some written “global submissions” were provided by the mother in relation to the stay appeal. The nub of these written submissions is that there needs to be special consideration given to the interests of the child, in particular, relating to the following circumstances:
·from August 2008 to the date of the appeal the child has had weekly contact with the respondent;
·the time she spends with the respondent has increased and under the current orders will continue to increase;
·the next increase to two full days of 10.00 am to 4.00 pm on Saturday and Sunday every third weekend is significant; and
·the child is asking why she has to go.
The mother says the best interests of the child are promoted by maintaining minimal contact periods until the appeal has been determined. There was some concession that it was better not to simply bring all time that the child spent with the respondent to an abrupt end, but rather there be a phasing out of the time.
Given it is accepted that the best interests of children are to be given at least significant consideration in these applications it is helpful to examine a number of matters relating to the granting of a stay in that context.
To not accede to the granting of a complete or limited stay means a continuation and perhaps further development of a relationship between the respondent and the child that his Honour found to be warm and loving. We find that he did both consider and appropriately analyse the child’s position.
His Honour was aware of the mother’s stress but even considering this he found it better for the child to maintain her relationship with the respondent. We discern no error of discretion in his Honour’s conclusion that to stop or limit the time spent with the respondent may result in greater disruption to her.
The position of the mother before his Honour was that if a greater attachment between the respondent and the child was allowed to develop then this fact may impact on her case at a re-hearing.
As we have already noted, however, at the hearing of the stay appeal the mother did not suggest the child’s time with the respondent should come to an abrupt halt pending the determination of the substantive appeal rather that it should be gradually reduced before ceasing altogether if the substantive appeal was allowed.
In K & B (2006) FLC 93-288 the Full Court dismissed a stay appeal where it found that the arrangements which existed for the particular child at the time of trial were not satisfactory, and therefore the maintenance of the status quo pending the determination of the substantive appeal was not in the child’s best interests. The Full Court, at paragraph 32, explained why in a parenting appeal, the granting of a stay to maintain a “status quo” is not always appropriate, or the best interests of a child may dictate refusal of a stay as appropriate. Their Honours said:
The granting or refusal of a stay involves an exercise of discretion by a trial Judge. Whilst such discretion must be exercised judicially, in cases involving children, we accept that from time to time circumstances in existence at the date of the orders, or which occur from the date of orders until the hearing of a stay application, may be very relevant matters to be considered in the exercise of discretion in determining whether or not to grant a stay. The interests of children would not be 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 to ignore unsatisfactory arrangements at the time of the orders, or significant events which have occurred after the making of those orders.
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.
I certify that the preceding thirty nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 19 June 2009
506
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