Attaway and Balloch
[2019] FamCAFC 206
•7 November 2019
FAMILY COURT OF AUSTRALIA
| ATTAWAY & BALLOCH | [2019] FamCAFC 206 |
| FAMILY LAW – APPEAL – Appeal against orders dismissing the appellant’s application for a stay of interim parenting orders – Where an appeal has also been filed in relation to the interim parenting orders – Where the effect of the dismissal of the application for a stay was that the care of the child moved from the appellant to the respondent – Where a stay of the orders was in the best interests of the child – Where the appeal would be rendered nugatory if a stay was not granted – Appeal allowed – Where the orders are set aside and the discretion re-exercised – Orders made staying the interim parenting orders pending the determination of an expedited appeal against them – Orders made for the parties to file and serve written submissions as to costs. |
| Family Law Act 1975 (Cth) s 94AAA(3) |
| Aldridge & Keating (Stay Appeal) [2009] FamCAFC 106 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 |
| APPELLANT: | Ms Attaway |
| RESPONDENT: | Mr Balloch |
| FILE NUMBER: | NCC | 1081 | of | 2019 |
| APPEAL NUMBER: | EA | 105 | of | 2019 |
| DATE DELIVERED: | 7 November 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 24 October 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 14 October 2019 |
| LOWER COURT MNC: | [2019] FCCA 2921 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Kelly |
| SOLICITOR FOR THE APPELLANT: | Derham Houston Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Jackson |
| SOLICITOR FOR THE RESPONDENT: | Mastronardi Legal Pty Ltd |
ORDERS MADE ON 24 OCTOBER 2019
IT IS ORDERED:
The hearing of appeal no. EA 105 of 2019 be expedited and heard today, 24 October 2019.
The appeal against the orders of Judge Costigan made on 14 October 2019 be allowed.
The orders of Judge Costigan made on 14 October 2019 be set aside.
In lieu thereof, orders 1 to 10 of Judge Costigan made on 17 September 2019 be stayed pending the determination of appeal no. EA 94 of 2019.
BY CONSENT IT IS FURTHER ORDERED:
Pending the determination of appeal no. EA 94 of 2019, the child, X born in 2011 (“X”) spend time with the respondent:
(a)For half of the NSW Gazetted school holiday period with the parties to agree on which half and in the absence of agreement the father have the first half in odd years (including Christmas) and the second half in even years;
(b)In relation to X on the third weekend of each month from 11am Saturday to 3pm Sunday; and
(c)As otherwise agreed between the parties.
Pending the determination of appeal no. EA 94 of 2019, the ‘first half’ of the school holidays shall commence at 12 noon on the day following the child’s last day of required attendance and shall conclude at 12 noon on the day closest to the middle of the holiday period having regard for the total number of nights and the ‘second half’ of the school holiday periods shall commence at 12 noon on the day closest to the midpoint having regard to the total number of nights and shall conclude at 12 noon on the day before the first day of required attendance in the new term.
Pending the determination of appeal no. EA 94 of 2019, the respondent have telephone communication with X each Tuesday and Thursday between 7.00pm and 7.30pm.
ORDERS MADE ON 7 NOVEMBER 2019
Any party seeking an order for the costs of the appeal is to file and serve written submissions within twenty-eight (28) days, with the opposing party to file and serve any written submissions in reply within a further fourteen (14) days. The party seeking the costs may file and serve submissions in response within a further seven (7) days.
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 Attaway and Balloch 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).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 105 of 2019
File Number: NCC 1081 of 2019
| Ms Attaway |
Appellant
and
| Mr Balloch |
Respondent
REASONS FOR JUDGMENT
Introduction
On 24 October 2019, I allowed an appeal from orders made on 14 October 2019 by a judge of the Federal Circuit Court of Australia in proceedings between Ms Attaway (“the mother”) and Mr Balloch (“the father”). The orders dismissed the mother’s application for a stay of interim parenting orders made by that judge on 17 September 2019.
Pursuant to the orders made on 17 September 2019, the care of the parties’ child, X, was moved from the mother to the father. The effect of the primary judge’s dismissal of the mother’s application for a stay of these orders was that the mother was ordered to return the child to the father by 4.00 pm on 27 October 2019.
In lieu of that dismissal, I made orders staying the orders made on 17 September 2019 pending the determination of an appeal against them. Due to obvious reasons, I was not in a position to do more than make orders on 24 October 2019.
Therefore, these are my reasons.
Background
To put my reasons in an appropriate context it is helpful to set out some relevant background.
The parties have three children. Y aged sixteen and X aged 8, who lived with the mother in B Region. Z, who is now aged fourteen, lived with the father in Town A.
The mother’s case is that X should live with her. She was content for Z to live with the father. The father’s case was that Z and X should live with him and that Y should live with the mother. Thus, the central issue was with whom X should live.
The parties separated in January 2017 and the mother moved from Town A to B Region in July 2017. A mediation took place in November 2018 and it was agreed that Y would live with the mother and Z and X would live with the father.
According to the primary judge’s reasons of 17 September 2019, there was an argument between the father and his partner in March 2019, which took place in front of Z and X who were both living with the father at the time. Z and X telephoned the mother and arranged to come and stay with her in B Region for a few days. The mother drove to Town A, collected Z and X and took them back to B Region (at [13]).
On 8 March 2019, the mother informed the father that X had requested to stay with her in B Region. The father did not agree to that course. Nonetheless, on 10 March 2019 the mother returned Z to Town A into the care of her father and X remained in B Region living with the mother.
On 8 April 2019, the mother filed an Initiating Application in the Federal Circuit Court of Australia seeking orders that all three children live with her. The father responded on 12 April 2019 by seeking a recovery order in relation to X. The competing applications were heard by the primary judge on 28 June 2019. Reasons were delivered and interim parenting orders were made by the primary judge on 17 September 2019. As described above, those orders required the mother to return X to the father’s care and provided that Z and X were to live with the father. Orders were also made for the children to spend time with the mother.
An appeal against those orders was filed by the mother on 26 September 2019.
On 1 October 2019, the mother made an application seeking a stay of the orders made on 17 September 2019. The mother’s application seeking a stay of the orders was heard by the primary judge on 10 October 2019 and dismissed on 14 October 2019. The primary judge also made the following order:
(2)…
(a)By not later than 4.00 pm on 27 October 2019 the Mother is to cause the return of the child [X] born [in] 2011 (‘[X]’) to the Father’s care in [Town A].
(As per the original)
On 16 October 2019, the mother filed a Notice of Appeal against the orders dismissing her stay application. The mother also filed an Application in an Appeal on the same day seeking expedition of this appeal.
The mother’s application for expedition of the appeal was listed before me on 24 October 2019. Self-evidently, for the appeal against the dismissal of the stay application to have any point whatsoever it needed to be heard and determined before X was due to be returned to her father on 27 October 2019.
Accordingly, the Registry informed the parties that they ought to be in a position to argue the appeal on 24 October 2019 in the event that the appeal was expedited. Each of the parties filed written submissions dealing with the appeal itself and were represented by counsel. For obvious reasons I expedited the appeal and heard it forthwith.
The appeal was heard by me as a single judge by a direction of the Chief Justice pursuant to the provisions of s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act).
The Appeal
The principles that govern a stay of orders were not the subject of any contest. They were accurately set out by the primary judge (at [12]), quoting from Aldridge & Keating (Stay Appeal) [2009] FamCAFC 106 (“Aldridge”) at [18], as follows:
·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 primary judge was satisfied that the mother was pursuing the appeal on a bona fide basis and that there had been no delay in bringing the application before the Court (at [37]). Her Honour was unable to form a view that the appeal was without merit, that is her Honour found that there was an arguable case on appeal (at [37]). The primary judge also found that the father was entitled to the benefit of the judgment and to presume it was correct (at [16]). These matters were largely uncontroversial.
I now turn to her Honour’s findings which were the subject of submissions on the appeal.
Was a stay in the best interests of X? (Ground 3)
The primary judge correctly recognised that “in parenting matters and in a stay application, it is very relevant and desirable to minimise frequency of change to a child’s living arrangements” (at [21]).
Indeed her Honour had been alive to that issue in her reasons for dismissing the stay application, where her Honour said:
18.One of the more significant issues which weighed upon my mind in exercising my discretion at the interim hearing was the disruption to [X]. I weighed up the negative consequences for the child, in disturbing her current living arrangements [in B Region], going to a school that she had attended for two terms and living with her mother and [Y]. I weighed these factors up against my concern that [X] was separated from her father who had been her primary carer since the mother’s move to [B Region] in July 2017, the separation from [Z] who was the sibling closest in age and concerns I had at the time in relation to the mother’s capacity to facilitate and encourage a relationship between [X] and the father. I recognised that any prolonged delay or period of separation from a parent
‘may cause problems or difficulties for the child, when and if that time is resumed.’
I took all those potential difficulties into account and found that it was in the best interest of the child that she return to [Town A] and the care of the father.
Her Honour then referred to the issues raised by the mother on the stay application including further evidence to the effect that the father was now working, would not be available to care for the children when he was at work and that X did not wish to return to Town A or to live with the father. This led her Honour to find:
31.I accept the undesirability of status quo arrangements for the care of child being disturbed pending the appeal process. However, this is a matter where the interim orders involve a reinstatement of a position which had been recently disturbed more by the actions of the mother than the father.
32.The mother’s case is that the preservation of the present status quo is the best outcome for [X] at this stage because the prospect of a move from her care back to the father has distressed her to the point where the mother has sought the assistance of the school counsellor. Secondly, she is likely to be successful in her appeal and [X] would be returned to her care in a relatively short period of time.
33.In relation to the former I have no doubt that [X] will be distressed by the decision which will cause some further disruption in her young life but as I observed previously that is the reality of the mother’s decision to retain her in her care. At this stage of the proceedings, I see no reason to doubt the correctness of my initial decision that it is in [X’s] best interests that she return to live with the father, her sister and attend her former school at [Town A].
I consider that there are two difficulties with the above paragraphs of the primary judge’s reasons. The first is that the appropriate parenting arrangements for X is not one of competing status quo arrangements, or which one should take precedence, but rather what is in the child’s best interests. There is no presumption that the status quo or, as the primary judge appears to have found, the status quo ante, is in the child’s best interests.
On the stay application, the primary judge is entitled to treat her Honour’s decision that the best interests of the child would be met by her returning to the father’s care as being correct. However, what her Honour had to consider was whether it was in the best interests of X to delay the enforcement of those orders until the determination of the appeal from them. This, in turn, involved a consideration of whether it was desirable for the child to be returned to the father’s care in Town A and possibly then returned to her mother’s care in B Region pending a further interim hearing with a final hearing yet to come or to delay the move for a short time pending determination of the appeal. The primary judge did not undertake this consideration.
In his submissions, counsel for the father pointed to the following paragraph of her Honour’s reasons which he submitted took into account this matter. Her Honour said:
40.Obviously, whatever is the outcome of the case there is potential for disruption in [X’s] young life. However, my concern not to destabilise [X] by a change in living arrangements has been outweighed by my concerns for her relationship with her father and sister. When I couple these matters with [X] spending no time with the father during the October 2019 school holidays, my concerns for their relationship are heightened and the weight of the evidence favours me not granting a stay.
This is a justification for the primary orders made on 17 September 2019 and not a consideration of the issue just discussed.
The second difficulty is that the primary judge did not take into account that a delay pending the determination of the appeal was likely to be short. As the listing of that appeal was not a matter for the primary judge, there was some uncertainty as to the time any stay would be in force, if granted. However, it is obvious that appeals in the Sydney Registry are heard promptly once the appeal is ready. Even so, that uncertainty is not a reason not to undertake the consideration. Rather, it is a factor to be taken into account. Further, a stay can be granted on the condition that the appellant expeditiously prosecute the appeal.
In any event that uncertainty is now dispelled. I have ordered that the appeal from the interim orders made on 17 September 2019 be fixed for hearing in the week commencing 9 December 2019. That is not a long period of time in which to delay the operation of the orders.
Accordingly, I am satisfied that there is merit in Ground 3.
Would the appeal be rendered nugatory if a stay was not granted? (Ground 1)
The mother submitted that the primary judge gave no weight at all to this consideration as opposed to submitting that insufficient weight was given, which is a submission which faces a high bar (Gronow v Gronow (1979) 144 CLR 513).
The primary judge accepted that “in refusing to order a stay [her Honour] render[ed] the mother’s appeal nugatory” (at [38]). Her Honour then proceeded to discount that finding by saying “[h]owever, I have no evidence when the appeal is to be heard” (at [38]). As I have said above, that is a relevant consideration but it is not one which absolves the Court from giving no weight to the appeal being rendered nugatory if the stay is refused. As the Court said in Aldridge at [18] it is a matter of some significance.
The upshot is that I consider that no weight was given to that significant issue because of the lack of knowledge as to when the appeal was likely to be heard and therefore this ground has been established.
That being so, it is unnecessary to consider the remaining grounds of appeal. The orders must be set aside and the discretion re-exercised.
What should the orders be?
I accept that the father is entitled to hold onto the fruits of his judgment and that there is a presumption that the judgment which is the subject of the appeal is correct.
I also take into account the fact that the mother’s appeal should be regarded as being arguable.
However, what carries a substantial weight is whether a stay of the orders is in the best interests of X. I do not see how X’s best interests are served by her being moved to the care of her father this weekend, when if the appeal against the orders made on 17 September 2019 is successful in December 2019, there is a reasonable possibility that she would then be returned to the care of her mother. This is a child who, in just over two years, has already had two changes to her primary carer. Any future changes to those substantial parenting arrangements should be reduced to a minimum.
This consideration is given greater weight when it is taken into account that, as is undoubtedly correct, the mother’s appeal will be rendered entirely nugatory if the child moves to live with the father.
The appeal will be heard promptly in the second week of December 2019.
For these reasons the appropriate order is that the parenting orders made by the primary judge on 17 September 2019 be stayed pending the outcome of the appeal.
The effect of that order is that there will be no orders extant which provide for X to spend time with either parent, although the obvious effect of them is that she will continue to live with the mother. The parties therefore have asked by consent that as a condition of any stay, that orders be made by consent providing for X to spend time with her father. That was sensible approach by the parties and orders to that effect were made.
Costs
The parties sought the opportunity to provide written submissions on the issue of the costs of the appeal and an order has been made to that effect.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 7 November 2019.
Associate:
Date: 7 November 2019
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