B & B
[2006] FamCA 876
•14 August 2006
[2006] FamCA 876
FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE No. EA75/06
IN THE MATTER OF: | B | Applicant |
AND | B | Respondent |
REASONS FOR JUDGMENT
EX TEMPORE
| CORAM: | FINN, COLEMAN, MAY JJ |
| DATE OF HEARING: | 14 August 2006 |
| DATE OF JUDGMENT: | 14 August 2006 |
APPEARANCES:
| Mr Lethbridge SC | Appeared for the Appellant |
| Mr O'Shannessy | Appeared for the Respondent |
FAMILY LAW – APPEAL – APPLICATION FOR STAY OF ORDER – Whether trial Judge erred in refusing to grant a stay of an order permitting mother to relocate with children pending an appeal by father against that order in circumstances where mother had relocated children prior to father filing a notice of appeal against order permitting relocation
Introduction
FINN J: This is an appeal by the husband against an order made by Lawrie J on 26 July 2006 refusing an application by the husband for a stay of orders which her Honour had made on 30 June 2006. For present purposes the important order made by her Honour on 30 June was an order which had the effect of permitting the wife to relocate from South-West New South Wales to Melbourne the two teenage children of the marriage of the husband and wife (or “father” and “mother” as I may interchangeably refer to them).
The background to this appeal is briefly as follows. From 14 to 22 November 2005 Lawrie J heard proceedings between the husband and wife concerning financial matters and children's matters. Included in the children's matters was the issue of whether the mother should be permitted to remove the children from South-West New South Wales to Melbourne, or whether they should stay in South-West New South Wales, but with the elder child being sent to boarding school in Sydney (as was the husband’s proposal).
On 30 June 2006 her Honour made orders concerning the children's matters only. As I said at the outset, the effect of those orders, importantly for present purposes, was that the mother was permitted to remove the children to Melbourne and to enrol them as day students at a Melbourne school. It is perhaps important to note that there was no stipulation in her Honour's orders of 30 June as to the time when the wife and children could move to Melbourne or as to the term or time when they were to commence at the Melbourne school.
However, her Honour did not publish any reasons on 30 June for the orders made that day, although there was apparently some indication from her Associate to the legal representatives of the parties that those reasons would be available within the course of the following week. In the event, however, the reasons for the orders concerning the children were not published until 3 August, and for completeness I mention that there have to date been no orders or reasons in respect of the property settlement dispute.
It emerges from the affidavits that were before Lawrie J on 26 July (when she heard the stay application which gives rise to this present appeal) that the mother in fact moved the children from South-West New South Wales on 14 July and arrived in Melbourne on 17 July and that the children started school in Melbourne on Monday, 24 July.
The husband apparently only became aware of the move to Melbourne when one of the children telephoned him on 18 July – he, as I understand it, was then in Queensland – advising him of the move to Melbourne. There was then correspondence on that day (18 July) between the solicitors for both parties in which an appeal was foreshadowed, but it was also confirmed to the father's representatives that the children and mother were already in Melbourne.
An application was then filed on behalf of the husband on 20 July seeking a stay of the orders of 30 June. A response was filed the following day on behalf of the wife seeking the dismissal of that application. The application for the stay was heard by Lawrie J on 26 July and both parties were represented before her Honour by Counsel. After a short hearing her Honour delivered an ex tempore judgment in which she determined that she would not grant the stay.
The reasons for judgment of 26 July 2006
Her Honour referred, on at least three occasions in her judgment, to the unfortunate fact that her reasons were still not available. The heart of her Honour's reasons is to be found in paragraphs 4, 5, 6 and 7, particularly paragraph 6. Those paragraphs are as follows:
4.As I say, the parties have the difficulty that they do not have the reasons, but the advantages of the children remaining united and under the care of the parent who had been the one who has devoted themselves to the day-to-day care of the children and their education obviously feature in those reasons.
5.It was very clear that the mother wanted to move to Melbourne as soon as possible. That was known to the husband from the time of separation. It would be expected that exactly what she has done would be done after the orders had been made. The non-notification of pursuit of an appeal and a stay is complicated by the failure to deliver the reasons, but nonetheless, I do not see her behaviour as being precipitate or underhand but being what could have been easily predicted from the evidence that was given in the hearing.
6.The children are now in Melbourne and are now at the new school. If the appeal is not successful, then leaving them there will avoid any disruption. The nature of the dynamics within the family made it inevitable that there would be the sort of upset that is deposed to in both of the affidavits of the parents, but to have the children return to [South-West New South Wales] with the possibility that they may then have to, once again, return to Melbourne is to impose on them something that would not be in their best interests and not in their welfare.
7.In the circumstances, I do not think that a stay will be in the best interests of the children. If the stay [sic – semble appeal] is successful, they can return to [South-West New South Wales] and the Sydney boarding school, but if it is not successful, then the sooner they are in Melbourne, the better. So, for that reason, the stay is refused.
The Grounds of Appeal
The amended grounds of appeal relied on by the husband in his challenge to her Honour's decision not to grant the stay are contained in the written summary of argument of his Counsel.
The first ground of appeal asserts that the trial Judge erred in failing to give adequate reasons for dismissing the husband's stay application. I would only say about this ground that it is completely clear to me on a reading of paragraphs 4 to 7 of her Honour’s reasons and in particular paragraph 6, why her Honour declined the stay. (See the test set out in Bennett and Bennett (1991) FLC 92 – 191 and the earlier authorities there cited). Essentially, her Honour wanted to avoid unnecessary disruption in the children's living arrangements. I consider that her decision cannot be successfully attacked on the basis of a lack of reasons.
The second ground of appeal asserts that her Honour erred in law in refusing the stay on the basis of reasons for judgment which were not available to the parties. As I commented during the hearing this morning, one would normally expect that where reasons for judgment are not available (in relation to orders sought to be appealed) that there would be a stay of orders granted at least until such time as the reasons became available.
However, even if in theory this ground may have some substance, it cannot succeed in this case for the reason that events had intervened with the children moving to Melbourne (thereby giving the case for a stay a different dimension). Accordingly, ground 2 cannot succeed.
Grounds 3 and 4 were, I believe, argued together in the written summary and in oral argument and they can be considered together. These grounds assert that her Honour erred in finding the wife's behaviour could be easily predicted and that she erred in finding that the wife had not acted in an underhand fashion in moving the children to Melbourne.
I am not satisfied that those findings were made in such clear terms as is asserted in the grounds of appeal. But be that as it may, and without intending any criticism of any party, the fact of the matter is that the mother had the benefit of the orders once those orders were made on 30 June, and no stay was applied for at that stage. One can speculate why the father may not have felt in a position to apply for a stay. But technically the mother had the benefit of the orders and, it has to be said, was entitled to do what she did, at least as a matter of law. Accordingly, I consider that grounds 3 and 4 have no substance.
By ground 5 it is asserted that the trial Judge erred in failing to have regard in determining the stay application to the evidence of the single expert. The evidence referred to in this ground is a report of a psychiatrist, Dr M. We permitted the father's Counsel to rely on Dr M's report before us. The argument put on behalf of the father was that Dr M's report indicated what the wishes of the children were, and that when one looks at her Honour's reasons for the parenting and relocation orders (published on 3 August), there is no express reference to Dr M, and one can thus not be certain as to how his evidence has been treated.
However, I consider that it would be unsafe to rely simply on the report of the doctor. We have been told that he was cross-examined. We do not have the benefit of a transcript of that cross-examination. Nor do we have the benefit of such other evidence as there is likely to have been regarding the children's wishes. Furthermore, in a case such as this, there would clearly be other issues in addition to the children’s wishes (albeit they would likely be important given the age of the children in this case). It would therefore be unreal, artificial to simply rely on the issue of wishes only for purposes of determining this appeal. Accordingly, ground 5 is not established.
Ground 6 asserts that the trial Judge erred in refusing the stay application in that the refusal was contrary to the best interests of the children. What is in the best interests of a particular child is a matter on which minds vary in any case (compare CVJ v VAJ (1998) FMC 92-828, paragraph 151), particularly in this case where there are so many potential scenarios if the appeal succeeds and a new trial occurs - and there are many scenarios that emerge out of a new trial. It would thus be very difficult to predict (in the context of a stay application) what is in the best interests of these particular children.
There was no question before us today by either Counsel other than that the best interests of the children is an important consideration, if not the paramount consideration, in a stay application relating to the parenting orders; that is made clear by decisions such as Carlin and Carlin (1977) FLC 90-320 and Clement and Clement (1981) FLC 91-013. However, it has not been shown to my satisfaction that the decision not to grant the stay – in other words, to require the children to be relocated from Melbourne to South-West New South Wales – was not in their best interests. Accordingly, I consider that ground 6 also does not have substance.
Conclusion
That, of course, disposes of all grounds of appeal. Having found that none of the grounds have substance, the appeal cannot succeed.
Put simply, my conclusion is that it has not been established that it was not open to her Honour to do what she did in connection with the stay. In this context, I refer now briefly to Nygh J's decision in Clement where his Honour 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 the custodial arrangements relating to the child should be limited as much as possible."
The facts in Clement were different to the facts in the present case. Nevertheless, in my view, that principle, being that the frequency of any changes in custodial arrangements relating to the child should be as limited as possible, was applied by her Honour. One needs to bear in mind that it is impossible to speculate on what the long-term outcome of this case will be; whether the appeal will ultimately succeed or not, we do not know. If it does succeed, there would have to be a new trial, and again there are many possibilities that could emerge out of the new trial.
In these circumstances, the appeal, in my view, must be dismissed. It needs to be stressed, of course, that this was a discretionary judgment. None of us sitting on this Appeal Bench may have reached the same conclusion. But we may have done so. However, that, of course, is not the test. As I have said, it has not been demonstrated that the discretion in her Honour miscarried when she determined that the stay should not be granted.
COLEMAN J: I agree that the appeal should be dismissed for the reasons advanced by the presiding Judge. I cannot usefully add to those reasons.
MAY J: I agree with the reasons of the presiding Judge and also would not allow the appeal.
RECORDED : NOT TRANSCRIBED
FINN J: We propose to also order that the costs of today also be costs in the principal appeal.
0
1
0