Atkinson & Atkinson (No 2)

[2017] FamCA 544

FAMILY COURT OF AUSTRALIA

ATKINSON & ATKINSON (NO 2) [2017] FamCA 544

FAMILY LAW – APPLICATION FOR STAY – Where application for stay pending Appeal to Full Court – Interim parenting orders – General principles considered– Stay refused.

Family Law Act 1975 (Cth)

Aldridge v Keaton (Stay Appeal) (2009) FamCAFC 106

Atkinson [2017] FamCA 274

K & B (2006) FamCA 848

APPLICANT: Mr Atkinson

RESPONDENT: Ms Atkinson

INDEPENDENT CHILDREN’S LAWYER: Mr Whelan

FILE NUMBER: PAC 4343 of 2013

DATE DELIVERED: 31 July 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 19 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Bateman

SOLICITOR FOR THE APPLICANT: Kheir Lawyers

SOLICITOR FOR THE RESPONDENT: Fay Rose Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mark Whelan Lawyer

Orders

1. That the father’s Amended Application in a Case filed 10 July 2017 be dismissed.

2. That any application for costs be by way of written submission filed within 28 days from this date with any submissions in response within a further 14 days thereafter judgment reserved to chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Atkinson & Atkinson (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4343  of 2013

Mr Atkinson

Applicant

And

Ms Atkinson

Respondent

REASONS FOR JUDGMENT

1. The father makes application for a stay of orders made 3 May 2017 pending his appeal to the Full Court of this Court following an interim hearing: Atkinson & Atkinson [2017] FamCA 274.

2. This judgment assumes familiarity with the reasons for judgment delivered.

3. The context of the interim application is set out in those reasons thus:

   3.The mother is presently aged 39 and the father aged 47.

   4.The parties married on … 2012 and separated in September 2013.

   5.Subsequent to separation litigation commenced in relation to the parenting arrangements for the child when the child was only 11 months old.

   6.Subsequent to separation the child was in the primary care of the mother until May 2014. At that time the child was retained by the father and the mother commenced proceedings.

   7.On 9 July 2014 interim orders were made for the child to spend time with the mother from 10.00 am Friday until 10.00 am Monday each week and spend time with the father for the remainder of the week. Changeovers were to be affected at the F Town police station.

   8.Subsequently, a final hearing as to parenting was conducted over some days in 2016 with final orders being made by Judge Harman in the Federal Circuit Court of Australia on 2 September 2016.

   9.The orders of September 2016 provided:

   (1)That all prior parenting Orders with respect to the child, [X] born … 2013, shall be and are hereby discharged.

   (2)That the child’s mother, [Ms Atkinson], shall have sole parental responsibility for all major issues decisions for the child.

   (3)That the child shall live with his mother, Ms Atkinson.

   (4)That the child shall spend time with his father, [Mr Atkinson], as follows:

   (a)Until the child commences primary school the following shall apply:

   (i)Each party shall forthwith do all things, sign all documents and give all consents, authorities and instructions as may be necessary to arrange and attend the first available and offered intake appointment at the [B] Contact Service to permit an assessment to be undertaken as to suitability for the parties to utilise that service for supervised changeovers;

   (ii)Upon assessment of suitability by the [B] Contact Service each party shall then attend at such times, dates and places, follow all instructions and rules as are applicable with respect to the provision of supervised changeovers, pay all fees as are required and provide all consents, authorities and instructions as are necessary to permit changeovers to occur through the [B] Contact Service;

   (iii)Upon the [B] Contact Service being able to facilitate the child’s transition from the care of the mother to the father at the commencement of each period of time and from the father to the mother at the conclusion of each period of time, the child shall then spend time with his father for a period not exceeding two consecutive days and nights per fortnight and, if possible, from 5pm Friday until 5pm Sunday each alternate weekend and provided that if the above period cannot be facilitated by the [B] Contact Service, then time shall be for such period not exceeding two consecutive days and nights per fortnight as can be accommodated and such period shall commence and conclude at such times and on such days as the [B] Contact Service can facilitate;

   (b)Upon the child commencing primary school, the child shall spend time with his father each alternate weekend during school terms from the conclusion of school Friday until the commencement of school the following Monday (extending to Tuesday in the event of a long weekend or pupil free day) and for such period not exceeding two consecutive days and nights per fortnight as can be accommodated by the [B] Contact Service during school holidays and [Mr Atkinson] shall be responsible for collecting the child from and returning the child to school at the commencement and conclusion of each school term period and school holiday changeovers shall occur through and in accordance with the availability and rules of the [B] Contact Service.

   (5)Pursuant to section 68B of the Family Law Act 1975, [Mr Atkinson] shall be and is hereby restrained and injuncted from presenting the child to any counsellor, psychologist or medical practitioner, save with the mother’s consent first had and obtained and provided that this restraint shall not preclude a medical practitioner providing medical treatment to the child in an emergency situation as defined by section 174 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (being treatment that is required urgently to save life or prevent serious damage to the health of the child).

   (6)Notwithstanding any Order to the contrary, each parent shall do all things, sign all documents and give all consents, authorities and instructions as may be necessary to enable the details of each parent to be recorded as both a parent and emergency contact person upon any school enrolment for the child and so as to enable each parent to obtain directly from the child’s school any reports or information they desire and provided, further, that each parent shall provide to the school a copy of this Order and shall make a request of the school (in writing) that the details of each parent be recorded in such a fashion as to ensure that each parent’s details are not accessible by the other and are not provided to the other.

   (7)Each parent shall forthwith and contemporaneous with the event cause any medical practitioner engaged with the child and providing emergency medical treatment to him to contact the other parent and advise them of that fact and so as to otherwise allow and permit each parent to be advised as to the child’s treatment and diagnosis and to visit the child if hospitalised.

   10.Subsequently, by Notice of Appeal filed 13 September 2016, the father appealed in part the orders made on the 2 September 2016 to the Full Court of the Family Court of Australia. The father’s appeal was in relation to orders 2, 3 and 4 made by Judge Harman.

   11.An application for a stay of the operation of the orders the subject of the appeal was dismissed by Judge Harman on 10 October 2016.

   12.On 24 March 2017 the appeal was allowed with the Court relevantly making the following orders:

   (a)By consent, the appeal be allowed.

   (b)Orders 2, 3 and 4 made to September 2016 be set aside as on and from the first return date of the rehearing of the proceedings before the Federal Circuit court of Australia.

   (c)The proceedings be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than Judge Harman.

   13.Otherwise, the further orders being orders 5, 6 and 7 were not disturbed on appeal and have remained in force.

   14.Consequent upon the orders made in September 2016, the child moved in to the mother’s primary care with the child spending time with the father as ordered.

   15.The mother says that subsequent to the child coming into her primary care it took some time to get the child into a firm routine. She found that the child was better behaved when he knew what was going on. Initially, the child had difficulty settling into day care. The child had previously only attended his father’s day care centre. The child was initially aggressive with other children and would not share toys. He was spitting, scratching and throwing items at the other children. However, over time the mother reports that the child’s behaviours improved.

   16.She says that the child’s behaviours on his return from time with the father are not present at her home or at the child’s day care.

   17.In circumstances more fully discussed below, the child subsequent to spending agreed time with the father was not returned by the father to the mother’s care and has remained in the father’s care spending no time with the mother pending determination of the present applications.

4. On 3 May 2017 orders were made as follows:

   ORDERS: PENDING FURTHER ORDER

   (1)That the mother have sole parental responsibility for the child [X] born … 2013.

   (2)That the said child live with the mother.

   (3)That the child spend no time with the father for a period of one calendar month from the date of these orders.

   (4)That the father is restrained from contacting or approaching the child in any way save for as provided for in these orders.

   (5)That commencing from one calendar month from the date of these orders the child spend time with the father on a supervised basis for a period of two hours each week as provided for below.

   (6)That each party must as soon as practicable:

   (a)contact the B Contact Centre or such other contact centre as is reasonably agreed and arrange an appointment for assessment of suitability for supervision of the time the child is to  spend with the father;

   (b)attend the assessment;

   (c)comply with any appointments made by the Contact Centre for supervised time;

   (d)comply with all reasonable rules of the Contact Centre; and

   (e)comply with all reasonable requests or directions of the staff of the Contact Centre.

   (7)If after the assessment intake procedure the Contact Centre is unable or unwilling to provide supervision then the Independent Children’s Lawyer has leave to restore the matter to the list on 7 days’ written notice to the other party and to the Court.

   (8)The Contact Centre may recommend the parties, or either of them, to participate in a program or programs, and in that event, the Independent Children’s Lawyer may re-list the matter for mention on seven days’ written notice to the other party and to the Court.

   (9)If after assessment the parties are accepted by the Contact Centre as suitable for supervised time the Father is to have contact with the child for a period of not less than two hours per week at times nominated by the Contact Centre, and such contact is to occur at the Contact Centre.

   (10)The Mother must deliver the child to and collect the child from the Contact Centre at the times specified by the Contact Centre, and on each occasion, promptly leave the building and the vicinity.

   (11)In the event that the Contact Centre offers supervised time only at times which are less regular than specified in Order 5, then contact shall occur at the times that are offered by the Contact Centre.

   (12)The time the child is to spend with the Father under Order 5 is to be supervised by the Contact Centre and the Father must pay the reasonable fees for the supervision on each occasion of supervision.

   (13)The Father must not attend the Contact Centre or its vicinity before the time with the child is to start and must promptly leave the Contact Centre and the vicinity at the time his time with the child is to end.

   (14)If the Contact Centre during the currency of these Orders, declines or is unable to continue to provide its services, or the Director of the Contact Centre recommends in writing to the parties a variation of these Orders, then the Independent Children’s Lawyer may, on seven days’ written notice to the other parties and the Court, restore the matter to the list. 

   (15)If, during the currency of these Orders, the parties and the Independent Children’s Lawyer agree in writing to vary these Orders, the parties have leave to list the proceedings in chambers urgently for consent orders to be made.

   (16)The period of contact provided in these orders may vary by reason of the closure of the Contact Centre’s services during school and public holiday periods, and in such event, contact shall occur at times when the services can be provided by the Contact Centre.

   (17)Liberty to apply as to implementation of these orders.

5. From the reasons for judgment of 3 May 2017 it is patently clear that the then arrangements for the child were not in the child’s best interests and indeed placed the child at risk of ongoing psychological abuse at the hands of the father.

The Appeal

1. On 30 May 2017 the father filed a Notice of Appeal to the Full Court. In that Notice of Appeal the grounds of appeal are pleaded thus:

   a)The learned trial judge erred in making findings not supported by the evidence and such errors infected the reasoning process.

   b)His Honour failed to properly assess and give any or adequate consideration to the provisions of section 60CC(3) of the Family Law Act 1975.

   c)His Honour erred in failing to give any or sufficient weight to the lack of independent expert evidence as to the mother’s ability to care for the child’s physical, emotional and psychological needs.

   d)That His Honour’s exercise of his discretion miscarried in that he took into account irrelevant evidence and failed to take into account or give appropriate weight to relevant evidence when arriving at his conclusions.

   e)That the orders resulted in a substantial injustice to the father and a risk to the best interests of the child which is the paramount consideration.

   f)That his Honour’s findings in respect of the father’s conduct overrode the necessary investigation as to what was in this particular child’s interests.

   g)That a total lack of contemporaneous independent evidence assessing the child’s current health and emotional state by an expert appointed by the Court, resulted in a decision being made, without the Court having the information required to make such a far reaching and irreparable decision for the child on an interim basis.

   h)The paramountcy principle applies in parenting cases and the insufficient evidence relating to the child’s current physical and emotional condition meant the learned judge could not find the orders made by him to be in the child’s best interests.

   i)That given the young age of the child unless the orders made are set aside they effectively destroy any chance of this particular child having a meaningful relationship with his father who has been his primary carer for most of his life and will negate any chance of the father’s application for final orders succeeding.

2. Ground a) above is absent any indicative particulars and thus unable to be assessed as to merit.

3. Ground b) must be considered in the light of paragraphs [96] to [106] of the reasons for judgment.

4. Ground c) complains about the lack of independent expert evidence where there was no application for an adjournment by the father to seek to adduce such evidence.

5. Ground d) seems to go to weight afforded to the evidence before the Court on interim hearing but is absent any indicative particulars and thus unable to be assessed as to merit.

6. Ground e) appears to be a submission.

7. Ground f) appears also to be a submission lacking any particularity.

8. Ground g) makes complaint as to the lack of contemporaneous independent evidence where there was no application for an adjournment by the father to seek to adduce such evidence.

9. Ground h) appears to be a submission.

10. Ground i) again appears to be a submission.

11. Overall there must be some reservation as to the prospects of the appeal on the grounds at least as they appear in the Notice of Appeal.

12. On 7 June 2017 the father filed an application for stay of orders made 3 May 2017. 

13. On 10 July 2017 the father filed an amended application for stay of the orders made 3 May 2017 pending determination of his Appeal. He otherwise sought that interim orders be made pending appeal in summary as follows:

    a)that pursuant to section 61C of the Act each parent shall have parental responsibility for the child at such times as the child is in their respective care;

    b)that the child spend time with the mother each weekend from 10.00 am Friday until 10.00 am Monday;

    c)that otherwise the child shall spend time with the father, that for the purposes of changeovers such changeovers be effected in the foyer of the [F Town] Police Station and not otherwise;

    d)that a copy of these orders be forwarded to the Control Commander [Suburb M] police station with a request that all counter staff rostered to work at about 10.00 am Friday and Monday respectively be made aware of these orders and are requested to provide such assistance as may be necessary or appropriate in ensuring that the peace is kept and that the parties comply with these orders and with the following order made pursuant to section 68B of the Act;

    e)that the parents and each of them shall be and are hereby restrained from contacting the other or coming into physical contact with the other, save for the purpose of changeovers as above and for the purposes of communicating to the other by text message in the English language only information directly relevant to the child’s health, care and well-being.

14. In support of his application for stay the father relied upon his affidavit filed 7 June 2017.  The father’s affidavit is substantially repetitive of matters that were before the Court at interim hearing.

15. The mother on 14 June 2017 filed a Response to the father’s Application in a Case seeking the dismissal of the application and relied upon her affidavit sworn 14 June 2017.

The Law

1. The law as to the general principles applicable to a stay in parenting proceedings pending appeal is substantially well settled. 

2. In  Aldridge v Keaton (Stay Appeal) (2009) FamCAFC 106, the Full Court said commencing at paragraph 17:

   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) HCA 40, Gronow v Gronow (1979) HCA 63 at paragraph 18.

   The principles to be applied in determining an application for 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, Alexander v Cambridge Credit Corporation (1985) 2NSWLR 685, Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited (1986) HCA 84, Clemett and Clemett (1981) FLC 91-013, JRN and KEN v IEG and BLG (1998) 72 ALJR 1329.

1. The Full Court then said:

   The authorities stressed the discretionary nature of the application which should be determined on its merits.  The principles relevant to this matter include the following:

   1.The onus to establish a proper basis for the stay is on the applicant the stay.  However, it is not necessary for the applicant to demonstrate any special or exceptional circumstances;

   2.A person who has obtained a judgment is entitled to the benefit of that judgment;

   3.A person who has obtained a judgment is entitled to presume the judgment is correct;

   4.The mere filing of an appeal is insufficient to grant a stay;

   5.The bona fides of the applicant;

   6. 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;

   7.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;

   8. Some preliminary assessment of the strength of the proposed appeal whether the appellant has an arguable case;

   9.The desirability of limiting the frequency of any change in the child’s living circumstances;

   10.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

   11.The best interests of the child, the subject of the proceedings are a significant consideration.

2. The Full Court at [36] referred to K & B (2006) FamCA 848, saying this:

   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.

3. The Full Court, at [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.  While 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 the 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 the 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.”

The Considerations 

1. Written submissions were received from the father’s counsel and solicitor for the mother.

2. The onus is on the father to demonstrate a proper basis for a stay of orders.

3. A preliminary assessment of the grounds of appeal is set out above and overall there must be reservation as to the prospects of the appeal having regard to the grounds pleaded and the reasons for judgment delivered in considering the child’s best interests.

4. A refusal of a stay will not render the appeal nugatory and no submission was made that it would. It was submitted on behalf of the father that in the event that a stay was not granted the orders would have an impact on the child’s relationship with the father pending determination of the appeal. The appeal is made in the context of interim parenting proceedings that will continue along the pathway to final hearing. The child will maintain a relationship with the father by reason of the orders made.  Such a relationship for the reasons given is to be in a protective circumstance for the reasons given and as provided for in the orders the subject of the appeal.

5. The father may well be bona fide in pursuing the appeal. The merits of his grounds of appeal as discussed above are subject to significant reservation. However, it is accepted that he is concerned about his relationship with the child pending determination of the appeal and/or final hearing. The reasons for his relationship being circumscribed as provided for in the orders made are readily apparent. The circumstances of the child at interim hearing were most unsatisfactory by reason of the father’s own conduct.

6. A stay of the orders and implementation of orders sought by the father would result in yet another change in the child’s circumstances. The child has been in the primary care of the mother since September 2016 and pending appeal will remain in her primary care until determination of the appeal or final hearing.

7. The father’s stay application seeks that orders be put in place that see the child moved on balance into his primary care and that changeovers be affected at a police station.

8. Should the mother be successful at final hearing that would then necessitate the child moving from the father’s primary care back into her primary care.   It is in the child’s best interests that there is stability pending determination of the appeal and/or final hearing.  

9. The mother in her affidavit filed 14 June 2017 deposes as to a significant improvement in the child’s behaviour now that the child is in her primary care. The child, says the mother, continues to exhibit behavioural issues. His behaviour clearly exhibits an inappropriate alignment with the father. The mother on 7 May 2017 caused the child to attend upon Dr N, paediatrician who has diagnosed the child with oppositional defiance disorder (ODD), global development delay, hyperactivity, social deprivation and ongoing psychological issues. She has enrolled the child in swimming and gymnastics classes as recommended by Dr N. The mother was to see Dr N again on 16 June 2017. The child’s behaviour at preschool has improved. The mother has observed that the child is now a lot calmer and settled. He is speaking a lot more fluently and his English skills are improving.

10. The child is, otherwise, now properly engaged with his siblings that reside with the mother.

11. The child’s present circumstances are clearly indicative of the child remaining in the mother’s primary care pending determination of the appeal.

12. There is no evidence as to the timeframe within which the appeal will be heard. The only submission from the father is that “the court is urged to bear in mind the delay that will be occasioned prior to the father’s appeal being heard and determined”. It is noted that on 25 July 2017 orders were made to ready the appeal for hearing, noting that the appeal is a half day appeal. The father was ordered to file appeal books by 5 September 2017 and the appellant’s summary of argument by 3 October 2017. Thereafter when the appeal will be allocated a hearing is simply not known with no evidence provided of any enquiry made to the Appeal Registry.

13. Otherwise, the Court is required to consider as a significant consideration the best interests of the child.

14. It was determined in the reasons for judgment that orders should be made in the child’s best interests for the reasons given. There is no evidence before the Court in the context of this application that would lead to any other conclusion than that the present circumstances of the child are in the child’s best interests.

15. The mother and the child are entitled to the benefit of such determination.

16. For the reasons given above the father’s application for stay will be dismissed.

I certify that the preceding forty one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 31 July 2017.

Associate:

Date:  31 July 2017