Bielen & Kozma (No 2)
[2022] FedCFamC2F 1250
•15 September 2022
Federal Circuit and Family Court of Australia
(DIVISION 2)
Kozma & Bielen (No 2) [2022] FedCFamC2F 1250
File number(s): BRC 10040 of 2020 Judgment of: JUDGE L. TURNER Date of judgment: 15 September 2022 Catchwords: FAMILY LAW – Parenting – stay application – where mother seeks stay application of orders whereby children aged 6 and 4 not spend time with or communicate with mother – held stay application dismissed Legislation: Family Law Act 1975 (Cth), ss. 60CC, 61DA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 13.03, 13.12
Cases cited: AMS v AIF (1999) 199 CLR 160
Brennan and Shaw (Stay Appeal) [2008] FamCAFC 138
Carlin and Carlin (1977) FLC 90-3210
Clemett and Clemett (1981) FLKC 91-013
House v The King (1936) 55 CLR 499
Maloney & Maloney [2011] FMCAfam 197
Pedrana & Cox(No. 2) [2012] FamCA 756
Trahn and Long (No 2) [2008] FamCAFC 194
Division: Division 2 Family Law Number of paragraphs: 64 Date of last submission/s: 12 September 2022 Date of hearing: 12 September 2022 Place: Lismore Solicitor for the Applicant: Mr O’Reilly of O’Reilly & Sochacki Lawyers Solicitor for the Respondent: Ms Bell of KLM Solicitors Counsel for the Independent Children’s Lawyer: Mr Priestley Solicitor for the Independent Children’s Lawyer: McVittie Legal ORDERS
BRC 10040 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BIELEN
Applicant
AND: MR KOZMA
Respondent
order made by:
JUDGE L. TURNER
DATE OF ORDER:
15 September 2022
THE COURT ORDERS THAT:
1.The application in a proceeding, including the stay application in respect to the final parenting orders made on 1 August 2022, filed by the mother on 2 September 2022 is hereby dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Kozma & Bielen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE L. TURNER:
introduction
After a five day final hearing concluding on 2 June 2022, final parenting orders were made on 1 August 2022 whereby the children X (aged 6) and Y (aged 4) live with the father, the father have sole parental responsibility for the children and unless otherwise agreed to in writing between the parties the children spend no time with and/or communicate with the mother.
On 25 August 2022 the mother filed a Notice of Appeal seeking that the 1 August 2022 final parenting orders be set aside and the matter be remitted for final hearing.
On 2 September 2022 the mother filed an application in a proceeding seeking a stay of the 1 August 2022 final parenting orders and the making of interim parenting orders whereby the children remain living with the father and spend weekly supervised time with the mother at a contact centre and communicate with the mother each Wednesday and Saturday.
The court was informed that the appeal will be conducted within 6 months of the filing of the Notice of Appeal therefore making the approximate hearing date of the appeal at or about February 2023.
Issues
The initial issues for determination is whether the final parenting orders made on 1 August 2022 be stayed.
In the event that a stay order is made then consideration be given as to whether interim parenting orders are to be made pending the determination of the appeal.
Evidence
In considering the issues regard has been had to:
(a)The relevant material on the digital file including the Reasons for Judgment and final parenting orders.
(b)The Notice of Appeal.
(c)The written and oral submissions of the parties.
(d)The relevant legislation.
(e)The relevant authorities.
Although not in receipt of legal aid the court appreciates the appearance of the independent children’s lawyer (ICL) and the oral submissions of counsel.
The parties are legally represented.
Cross-examination did not occur.
Findings of fact are made on the balance of probabilities having regard to the evidence and in what follows statements of fact constitute findings of fact.
Before considering the issue it is necessary to capture the relevant law applicable to stay applications.
The law
Pursuant to Rule 13.03(1) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 a Notice of Appeal must be filed within 28 days of the orders being appealed against are made.
The filing of a Notice of Appeal does not, pursuant to Rule 13.12(1) “stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision”.
If a party is seeking to stay the orders appealed from then an application for stay is to be filed (Rule 13.12(2)) which is to be heard by the judge who made the order under the appeal (Rule 13.12(3))
In Carlin and Carlin (1977) FLC 90-3210 at 76,696 it was held that a successful litigant in an appeal should be entitled to the “fruits” of the litigation.
As to how a stay application is to be determined was discussed by Bell J in Pedrana & Cox (No. 2) [2012] Fam CA 756 at [8] to [10]:
The decision to grant a stay is a completely discretionary matter (see In the Marriage of Kelly (1981) FLC 91-007).
In Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106, the Full Court considered an appeal from the refusal of the Chief Federal Magistrate to stay parenting orders. The Full Court (Byrant CJ, Boland and Crisford JJ) said… 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;
•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 Full Court in Sheldon & Weir (Stay Application) [2011] FamCAFC 5 again stated that these principles, similarly outlined in Trahn & Long (No. 2) [2008] FamCAFC 194 and subsequently cited by the trial Judge, were a correct statement of the relevant principles for the purposes of that appeal
F. Turner FM (as His Honour was then known) in Maloney & Maloney [2011] FMCAfam 197 at [17] and [18] stated that the applicable principles to take into account when determining whether a stay should be granted in a parenting matter include but are not limited to the following:
(a)The onus to establish a proper basis for the stay is on the applicant for the stay but it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances.
(b)The mere filing of an appeal is insufficient to grant a stay.
(c)The bona fides of the applicant.
(d)There needs to be a preliminary assessment of the strength of the proposed appeal and whether the appellant has an arguable case.
(e)The desirability of limiting the frequency of any change in a child’s living arrangements.
(f)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.
(g)The best interests of the child are a significant consideration.
I will now apply the relative principles to determine whether a stay is to be granted in this matter.
Fruits of the litigation
This was a lengthy final hearing where all parties were legally represented, the court had the benefit of an ICL and an expert witness and extensive cross-examination occurred.
As a consequence, a lengthy 47 page judgment was delivered consisting of 141 paragraphs.
The judgment contains many findings, the most relevant of which are:
(a)The father does not pose an unacceptable risk of harm to the children [59].
(b)The mother does pose an unacceptable risk of harm to the children [103].
(c)The mother fails to see that the mother’s words and actions have caused significant damage to the children and will continue to do so unless the mother addresses her views and attitudes towards the father [126].
(d)Before any time can be spent by the mother with the children and any communication occur between the mother and the children, the mother requires effective therapeutic assistance [116].
(e)Therapy alone without the involvement and support of the maternal family is unlikely to be effective [119].
(f)Without effective therapy the mother will continue to raise allegations of sexual abuse of the children by the father [120].
(g)This will be a difficult finding for the mother to accept as the mother has been the primary carer of the children, she loves the children and has a deep and meaningful relationship with the children ([123] to [125]).
As a finding of unacceptable risk has been made and as there is insufficient evidence before the court as at the date of hearing of the stay application that the mother is in receipt of effective therapy and has shifted in her views of the father then I find that the father should benefit from the “fruits of the litigation”; namely that the mother not spend time or communicate with the children.
I find that this principle supports the proposition that the stay application filed by the mother be dismissed.
Delay
The mother has been prompt in the filing of the appeal.
Therefore this is not a principle that need be taken into account in determining the stay application.
Mere filing of appeal
The mother is aware that the mere filing of an appeal is not sufficient for a stay and has filed the appropriate application in a timely manner.
Therefore this is not a principle that need be taken into account in determining the stay application.
Onus
The onus is on the mother to establish why a stay of the orders should be granted.
The mother has provided written submissions in support of her application to satisfy this onus and consideration has been given to the written submissions.
Therefore this is not a principle that need be taken into account in determining the stay application.
Bona fides
I find that there is no reason to doubt the bona fides of the mother in the filing of an application for a stay.
Therefore this is not a principle that need be taken into account in determining the stay application.
Preliminary assessment of strength of the appeal
A judgment made in a parenting matter is a discretionary judgment.
In House v The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ where at [504] and [505] said :
The manner in which an appeal against an exercise of discretion should be determined is governed by establish principles. It is not enough that the judges composing the appellate court considered that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or other relevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached a result embodied in the order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law imposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial long has in fact occurred
Kirby J in AMS v AIF (1999) 199 CLR 160 supported the decision in House v King stating at [211]:
Appellate court, invited to review the exercise of discretion at first instance will avoid overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to required that it be the exercise on a retrial
In an application for a stay the first instance judge is required to conduct some preliminary assessment of the strength of the proposed appeal to determine whether the appellant had an arguable case (Trahn and Long (No 2) [2008] FamCAFC 194 at [38]).
This is not an easy task as recognised by the Full Court in Brennan and Shaw (Stay Appeal) [2008] FamCAFC 138 where it is commented at [64]:
On the issue of whether the trial Judge gave adequate weight to the likely prospects of success of the appeal, it is not in doubt, that his Honour accepted the appeal was a bone fide one. We accept that his Honour did not directly canvass to any significant extent the merits of the grounds of appeal, and note that such an exercise is a difficult one for a trial Judge who has diligently and carefully decided a case and made orders which he or she considers to be in the best interests of the child
The mother, in the Notice of Appeal, sets out seven grounds of appeal which I will now address individually:
(a)Failure to consider the primary consideration of the benefit of the children having a meaningful relationship with both parents
(i)A finding was made that the mother poses an unacceptable risk to the children pursuant to the primary consideration set out in section 60CC(2)(b) Family Law Act 1975.
(ii)In accordance with section 60CC(2A) a finding pursuant to section 60CC(2)(b) must be given greater weight than any other consideration in section 60CC including the primary consideration as to meaningful relationships as contained in section 60CC(2)(a).
(iii)Given this finding of unacceptable risk I made the decision that it was not necessary to explore the consideration of meaningful relationships ([136] Reasons for Judgment).
(iv)However it was acknowledged in the judgment that the children and the mother have a deep and loving relationship but that until such time as the mother addressed her attitude towards the father and received effective therapeutic intervention it would not be in the best interests of the children to spend time or communicate with the mother.
(v)I therefore make the preliminary assessment that the strength of this ground of appeal is poor.
(b)Failure to consider the additional considerations
(i)A finding was made that the mother poses an unacceptable risk to the children pursuant to the consideration set out in section 60CC(2)(b) Family Law Act 1975.
(ii)In accordance with section 60CC(2A) a finding pursuant to section 60CC(2)(b) must be given greater weight than any other consideration in section 60CC including the additional considerations contained in section 60CC(3).
(iii)Given this finding of unacceptable risk I made the decision that it was not necessary to explore the additional considerations ([136] Reasons for Judgment).
(iv)I therefore make the preliminary assessment that the strength of this ground of appeal is poor.
(c)Erred in law in failing to correctly apply section 61DA
(i)The issue of parental responsibility and the resumption not applying was addressed under the heading “parental responsibility” in the reasons for judgment [137] to [140].
(ii)I therefore make the preliminary assessment that the strength of this ground of appeal is poor.
(d)Erred in law in that the exercise of discretion resulted in an outcome that was plainly wrong or unjust having regard to the failure to consider the impact of the parenting orders on the children given that young age, severance of the relationship with a parent or adequate weight to the mitigation of risk
(i)Discretion was exercised after due consideration of the evidence and a finding was made as to the mother presenting as an unacceptable risk to the children.
(ii)As to whether that discretion was exercised correctly or whether it was “plainly wrong” or “unjust” will be a decision for the Full Court to make.
(iii)Although there was no direct evidence before the court as to the impact on the children should the relationship with the mother be severed, there was direct evidence as to the negative impact on the children in having been exposed to the mother’s behaviours leading up to the final hearing ([95] Reasons for Judgment) and expert evidence as to the ongoing negative impact on the children should the children continue to be exposed to the unacceptable risk posed by the mother ([101] Reasons for Judgment).
(iv)I find that this evidence was sufficient to support a finding that the mother poses an unacceptable risk to the children and that this risk could not be mitigated in any way other than an order for no time and no contact for the mother with the children.
(v)It was explained in the judgment that this was not the end of the matter as the issue of time and communication could be revisited once the mother was able to convince the court or the father that the mother and her family no longer pose an unacceptable risk to the children ([129] to [131] Reasons for Judgment).
(vi)I therefore make the preliminary assessment that the strength of this ground of appeal is poor.
(e)Erred in law in the consideration of unacceptable risk and the standard of proof
(i)I am of the view that I have applied the law correctly in respect to unacceptable risk and the standard of proof.
(ii)As to why the mother is of the view that an error has been made in law as to unacceptable risk and the standard of proof is not clear from the Notice of Appeal and therefore I am unable to comment as to the prospects of success as to that aspect of the appeal.
(f)Inadequate reasoning
(i)The mother sets out as a ground of appeal that the reasons contained in the judgment were inadequate and that it was not possible to discern the path of reasoning and the legal principles applied.
(ii)This matter was complex and capturing the various issues was difficult.
(iii)Great lengths were taken throughout the judgment to set out in as logical a manner as possible the events, the reasoning, the law applied and subsequently the findings that were made which led to the final parenting orders.
(iv)I therefore make the preliminary assessment that the strength of this ground of appeal is poor.
(g)Failure to consider whether any condition would sufficiently ameliorate the risk and whether any other order was available to enable children to have the benefit of a relationship with the mother
(i)Full consideration was given in the judgment as to whether any relationship for the children with the mother would be in the children’s best interests but ultimately a finding was made that until such time as the mother received effective therapeutic treatment then no time or communication could occur between the mother and the children, otherwise the children will be at risk from the mother.
(ii)This finding was made due to continued concerns that the mother could not refrain herself whether in a phone call or face-to-face from making allegations against the father ([120] to [121]).
The father submits that the appeal is without merit ([17] father’s written submissions).
I find having considered the grounds of appeal that I too, struggle to understand why the appeal would be successful on this ground.
In any event if the appeal is successful the matter will need to be remitted for hearing and cautions will need to be taken by the new trial Judge in changing the parenting arrangements where the issue of unacceptable risk needs to be determined.
I find that this principle supports the proposition that the stay application filed by the mother be dismissed.
desirability of limiting the frequency of any change in a child’s living arrangements
In Clemett and Clemett (1981) FLKC 91-013 at 76,175 it was held:
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 is possible
X and Y, at their tender ages have had many changes in their lives.
As illustrated and set out in the Reasons for Judgment, whilst primarily living with the mother until June 2022, the children had had a fractured and irregular relationship with the father.
Since June 2022, by way of interim court order, the children have been living with the father with telephone communication ceasing in August 2022.
The children have had only a number of months to adjust to living with the father and a number of weeks to adjust to not spending time and communicating with the mother.
To reintroduce the mother to the children when there is insufficient evidence before the court that the mother has received the necessary effective therapeutic assistance and has a support of her family in receiving that assistance, I find would not be in the children’s best interests as the issue of the mother posing an unacceptable risk has not been properly addressed.
I find that this principle supports the proposition that the stay application filed by the mother be dismissed.
period of time in which the appeal can be heard
The appeal will be heard in a matter of months.
The principles so far support a dismissal of the stay application.
I find that this in no way makes the appeal nugatory as should the mother be successful in her appeal then consideration can be given to reinstating a spend time and communication regime between the mother and children pending a further final hearing.
The recent incident where the mother ran into the children and the children’s reaction to the mother reinforces that the deep and meaningful relationship between the children and the mother remains intact.
However should the appeal be unsuccessful and a stay application is not granted this will ensure that the children are protected from the unacceptable risk posed by the mother until such time as the mother seeks the necessary effective therapeutic assistance to address the risk factors.
I find that this principle supports the proposition that the stay application filed by the mother be dismissed.
best interests of the children are a significant consideration
There is nothing before the court that supports that the mother no longer presents as an unacceptable risk to the children.
Whilst the mother has undertaken some counselling which appears to have given her some insight as to the unreliability of comments made by the children, the mother has yet to embark on a therapeutic journey with a qualified therapist to address the long held and mistaken beliefs the mother holds about the father and the impact of her behaviours of the children.
Further there is no evidence as to what the maternal family is doing to support the mother in obtaining effective therapy and what the maternal family is doing in addressing their beliefs regarding the father.
Whilst the finding of unacceptable risk continues I find that it is in the best interests of children not to have a relationship with the mother.
Therefore the other considerations in section 60CC need not be addressed.
I find that this principle supports the proposition that the stay application filed by the mother be dismissed.
Overall conclusion
Taking into account the principles set out in Aldridge and other related authorities I find that the application for a stay filed by the mother of the 1 August 2022 final parenting orders be dismissed.
As the stay has not been granted then consideration need not be given to the mother’s proposed interim parenting orders.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge L. Turner. Dated: 15 September 2022
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