ASHTON & PAINE (No.2)

[2015] FCCA 2813

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASHTON & PAINE (No.2) [2015] FCCA 2813

Catchwords:
FAMILY LAW – Application for a stay pending appeal from interim parenting orders.

Legislation:

Family Law Act 1975

Aldridge & Keaton(Stay Appeal) [2009] FamCAFC 106
Trahn & Long(No.2) [2008] FamCAFC 194

Applicant: MR ASHTON

Respondent: MS PAINE

File Number: MLC 8584 of 2015

Judgment of: Judge Harland

Hearing date: 29 September 2015

Date of Last Submission: 29 September 2015

Delivered at: Melbourne

Delivered on: 29 September 2015

REPRESENTATION

Counsel for the Applicant: Ms Winfield

Solicitors for the Applicant: Moore Law Firm

Counsel for the Respondent: Ms Canturi

Solicitors for the Respondent: Cash & Stavroulakis Lawyers

ORDERS

1. The application for a stay of the orders made on 23 September 2015 is dismissed.

2. Both solicitors are to file an affidavit within 14 days explaining the circumstances of the children being placed on the Watchlist.

3. The mother is to file and serve an amended application for final orders within 14 days.

IT IS NOTED that publication of this judgment under the pseudonym Ashton & Paine (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 8584 of 2015

MR ASHTON

Applicant

And

MS PAINE

Respondent

REASONS FOR JUDGMENT

1. This is an application filed by the father on an urgent basis seeking a stay of the orders that I made on an interim basis on 23 September 2015. The principles with respect to applications for a stay in parenting proceedings are well established and in that regard I refer to Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 and in particular, paragraph 18 of that judgment which summarises the principles which have been referred to in several other cases on this point. It reads:

   “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] HCA 13;(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] HCA 84; (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.

2. It is well established in determining whether or not to grant a stay is an issue of discretion for the judge.  In considering whether or not to grant a stay of orders there are several factors that the court must consider.  The onus for establishing a proper basis for a stay of the orders is on the applicant.  The applicant does not need to establish exceptional or special circumstances but it is relevant to consider the nature of the orders sought and the merits of the appeal and I will come back to that point.  It is also an established principle that a person who has obtained judgment is entitled to presume that that judgment is correct. 

3. A stay may be granted on terms that are fair to both parties. The mere filing of an appeal does not grant a stay but in this case that is not in issue because the father has filed his appeal and has also filed his application for a stay and there has been no delay on his part in taking that action. Another issue of consideration is the bona fides of the application. I accept Ms Winfield’s submissions in this regard. I do not think there is any issue that the father is not bona fide in his application.

4. There is a need to consider the risk that the appeal will be rendered nugatory if the stay is not granted and this is a substantial factor to consider and is certainly a significant factor in this case.  It is also necessary to conduct a preliminary assessment of the strength of the proposed appeal, considering whether or not there is an arguable case.  Another factor that is important to consider in parenting cases such as this is the desirability of limiting the frequency of changes in living arrangements for children and that is something that the Full Court referred to in Trahn & Long(No.2) [2008] FamCAFC 194.

5. The period of time in which the appeal can be heard and whether or not there are satisfactory existing arrangements in place are also a relevant consideration as to whether or not an appeal should be granted for a short period of time.  At this stage it is not known as to when the appeal will be heard.  An application for expedition has not been filed but I understand from Ms Winfield that that will be done shortly. 

6. It is important to note that these are interim orders with a future return date to be given for the matter in Sydney and that the current orders provide for the mother and children to return to Australia by
   15 December 2015.  The best interests of the children is another matter that needs to be considered.  I am not going to repeat my reasons in the primary application which sets out the issues. 

7. There is no doubt that this was a matter that was brought on by both sides very quickly and there is no criticism of anybody for that. What that meant, and this was made clear at the hearing before me, was that the mother’s position had changed and she confirms through her counsel that that is still the case; that she is no longer seeking permission to relocate or in effect to stay in Singapore on a permanent basis with the children and intends to return to Sydney. 

8. That was confirmed today and I will direct that the mother file and serve an amended initiating application within 14 days so that that issue is clarified.  One of the significant factors in this case is the practicalities and whilst the application for a stay was brought on quickly, [X] is in fact already back in Singapore with his mother.  Therefore, to grant the stay would in effect separate the children again. 

9. It is also the case that the orders that I made provide for the father to spend time with the children in Singapore during the period that the mother and the children remain in Singapore.  It remains the case that, as at the hearing before me on 23 September 2015, the father does not make any proposal in terms of finances that would deal with the issue of the mother giving up employment in Singapore and not having finances until she secures a job in Sydney.  That was a real issue. 

10. Whilst the father has not been working, it is clear on his own evidence, and this is referred to in the primary judgment, that he has financial resources from his parents.  In my view the grounds for appeal are fundamentally flawed with respect to the reference to the Hague Convention.  For these reasons, there is no and was no application under the Hague Convention on foot.  The grounds of appeal in itself at paragraph 2 assumes that there is no dispute about the children’s habitual residence, who their primary carer was and the intentions of the parties.  That is simply not the case. 

11. It is quite clear, as I was at pains to point out in the judgment, where the parties differed on some fundamental factual issues which I could not determine on the interim basis and cannot determine now and one of those factors was who is the primary carer.  It is also the case, and this cannot be disputed, that there is no set agreement saying when the family would return to Australia.  Certainly there were discussions but in my view there would be a real controversy about the children’s habitual residence given that the family had the right to live in Singapore, they had residency in Singapore. 

12. The children’s habitual residence arguably at this stage is Singapore and there would be a real issue about a breach of the mother’s rights of custody as well as real disputes about whether or not there was a wrongful retention or, conversely, a wrongful removal. There are real challenges in this case because it was very clear that the father removed [X] from Singapore knowing that the mother did not consent to him doing that and he did it surreptitiously. The effect of that was to separate the children which was the dilemma that the court faced.

13. It is important to note as well that the court is often called upon to make orders that enable children to travel overseas with their parents or to reside overseas for periods of time on a permanent or a temporary basis. That does not mean that the orders that the court makes in that regard are automatically unenforceable. What is clear on the facts of this case is that unless the orders are stayed there would be no bona fide basis for the father to bring an application under the Hague Convention on the Civil Aspects of International Child Abduction until after 15 December 2015 and that a proper application under the Hague Convention would arise if the mother fails to return with the children to Australia by 15 December 2015.

14. It is quite clear that the father does have a remedy under the Hague Convention if that comes to pass and that is a relevant factor because it is not in dispute that Singapore is a member of the Hague Convention. The reality is that the order providing for [X] to return to Singapore with the mother has already been carried out. Therefore, the children have already been reunited in Singapore. To do as the father suggests would be to bring about another change for the children in circumstances where, as is clear from the primary decision, one of the main issues in allowing for there to be a timeframe for the mother to organise the return to Australia was the issue of finances and I will not repeat my reasons in that regard.

15. The orders do provide for the father to spend substantial periods of time in Singapore so long as the children are there and in fact, Ms Canturi indicated today that the parents have made arrangements for not only the father but the paternal grandparents as well to visit Singapore this weekend. This leads to another issue that I find extremely troubling in the conduct of these proceedings.  If those arrangements have been put in place then it was incumbent upon
    Ms Winfield’s instructor, Mr Moore, to ensure that she was aware of that fact because it is well established that applicants appearing in this Court have a duty to the court and that is very relevant information to be exercised in the discretion that I am being asked to make. 

16. Of even more concern to me are the circumstances as to how the children were placed on the Watchlist. That is not dealt with in the father’s application and it is not an issue that was brought to the Court’s attention when this matter was before the Court on 23 September 2015. Ms Canturi indicated this morning that she understood that her instructor had been informed that the children had apparently been placed on the Watchlist on 11 September 2015. That is well before the father filed his material. That is in fact when the mother filed her material.

17. The timing of when the children were placed on the Watchlist and the Court not being informed of it is of concern because that is a material issue that, of course, if the Court had been made aware of it, a specific order would have dealt with it.  Looking at the timing, if it’s an issue of the mother putting the children on the Watchlist then that would be a matter which she would need to have informed the Court of. What I am going to direct is that both solicitors file an affidavit within 14 days explaining the circumstances of the children being placed on the Watchlist.

18. If it turns out that a practitioner was aware of that and did not inform the Court then that is an issue that I consider a serious issue of professional conduct. If that is the case, then the solicitor concerned should also address why that conduct should not be referred to the relevant legal body.

19. Revisiting the principles applying to stay applications, I certainly accept that in this case in all likelihood, unless the appeal can be brought on very quickly, then the refusal of the stay renders the father’s appeal nugatory.

20. However, I do not think that the notice of appeal presents an arguable case and, furthermore, there is a remedy if the mother does not comply with the interim orders.  It is a significant factor to note that orders 1, 2 and 3 have been implemented and arrangements are in place for the father to spend time with the children in Singapore.  Weighing up those considerations, I do not think it is in the children’s best interests to grant the stay and to change the arrangements that are in place. For these reasons, I dismiss the application for a stay.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  20 October 2015