Blakeley and Morrell

[2014] FCCA 2212

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLAKELEY & MORRELL [2014] FCCA 2212

Catchwords:
FAMILY LAW – Stay on Appeal – relocation.

Legislation:  
Family Law Act1975

Clement & Clement (1981) FLC91-013
Sheldon & Weir (No.4) [2010] FamCA 1214
House v the King (1936) 66 Commonwealth Law Reports 499

Applicant: MS BLAKELEY

Respondent: MR MORRELL

File Number: SYC 4645 of 2010

Judgment of: Judge Myers

Hearing date: 10 September 2014

Date of Last Submission: 10 September 2014

Delivered at: Newcastle

Delivered on: 10 September 2014

REPRESENTATION

Solicitors for the Applicant: Peter Hamilton & Associates

Solicitors for the Respondent: Emery Partners

ORDERS

1. The Court is of the view that it is not in the best interests of the children that they remain living with the mother and spend time with the father on the terms proposed by the mother if a stay were to be granted.  The application for a stay of the orders made on 22 August 2014 is refused, and dismissed.  Those are the orders I make.

2. The Court reserves the costs of the respondent in the application for stay to be determined on a date to be advised.

IT IS NOTED that publication of this judgment under the pseudonym Blakeley & Morrell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT NEWCASTLE

SYC 4645 of 2010

MS BLAKELEY

Applicant

And

MR MORRELL

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. These are proceedings in respect of an application for a stay of orders made by the court on 22 August 2014.  On 28 August 2014 a notice of appeal was filed in the Eastern Region of the Appeals Registry of the Family Court of Australia.  The notice of appeal provides that the appeal be allowed; that the orders of the Federal Circuit Court made on 22 August 2014 be set aside, that the matter be remitted for re-hearing before a judge other than Judge Myers and that the Respondent pay the Appellant’s costs of the appeal.  At part (e) of the appeal there are listed grounds of appeal as follows:

   (1) That the learned judge erred in law in that he:

   (a) failed to consider all of the likely effect on the mother and her ability to parent the children by reason of her disappointment and distress at being required to relocate to Newcastle and the effect that that may have on the children;

   (b) failed to consider at all the likely effect on the mother and her ability to parent the children by reason of her being removed from the support of her family and support network in Queensland and the effect that that may have on the children;

   (c) failed to consider the effect on the mother and her ability to parent the children by reason of her having an ongoing financial commitment with the father in circumstances where it is common ground that she was unable to support herself;

   (d) failed to consider at all the mother’s ability to obtain accommodation suitable for herself and the children in Newcastle and otherwise her ability to support herself in Newcastle on Centrelink benefits. 

   (2) That the learned trial judged erred in his findings that:

   (a) little or no weight should be placed on the evidence of the father’s past communications with previous partners on the basis that such communications are what he stated were best described as tendency evidence;

   (b) the parties were in a relationship between April 2011 until June 2011, that finding as being contrary to and against the weight of the contemporaneous evidence;

   (c) unless the children live with the mother within 50 kilometres of the Newcastle post office, the parties would be unable to implement an arrangement for substantial and significant time;

   (d) it would be disastrous to the children’s best interests if the mother remained in Queensland and the father in Newcastle, with such findings being contrary to and against the weight of the evidence, both lay and expert.

   (3) The learned trial judged erred in placing excessive weight on the demeanour and reliability of the mother as a witness and thereby failing to consider documents and evidence which corroborated the mother’s allegations regarding the father’s behaviour.

   (4) the learned trial judge erred with respect to the evidence of the family consultant in that he:

   (a) found that the Family Consultant solely relied upon an acceptance of the mother’s complaints to the effect that the mother had been exposed to family violence at the hands of the father when the family consultant considered other matters to be relevant to her opinion and thereby failed to give proper and sufficient weight to the opinions expressed by the family consultant;

   (b) failed to place any or sufficient weight on the observations of the family consultant in relation to the behaviour of the father at interview;

   (c) failed to place significant or any weight on the evidence contained in the limited issues report dated 22 May 2013.

   (5) That the learned trial judge erred in law in the findings that he made in relation to primary attachment in that he:

   (a) failed to place any or sufficient weight on the fact that the mother had been the children’s primary carer;

   (b) found that the children’s primary attachment would change if they were separated from their mother, such findings being unsupported by any evidence.

   (6) The learned trial judge erred in failing to give proper and sufficient weight to the prior consistent statements by the mother and the evidence of the family consultant in finding that the mother was unable to stand up to the father or that she did not feel belittled and manipulated by the father.

   (7) The learned trial judge erred in failing to consider the age and level of maturity of the children [names omitted] when considering the father’s relationship with them in the context of his ability to relocate to Queensland. 

   (8) The learned trial judge erred in failing to consider the source of power for the orders made in paragraph 17 and the consequence, should the father fail to pay the ordered sum.

   (9) The learned trial judge erred in law in that his decision was plainly wrong.

   (10) as a result of the matters identified, the judge’s discretion miscarried.

2. A copy of the orders that were made by the court on 22 August 2014 were attached to the appeal.  On 28 August 2014 a notice of appeal was filed in the Eastern Registry of the Appeals Registry of the Family Court of Australia.  On 27 August 2014 the applicant, Ms Blakeley, caused to be filed an application in a case and affidavit in support of the orders sought by her sworn 27 August 2014.  The applicant sought the following orders: 

   (1) that the final orders made in my family law parenting matter before his Honour, Judge Myers, on 22 August 2014 be stayed pending determination of the application made by Ms Blakeley on 27 August 2014 for appeal in the Full Court of the Family Court;

   (2) the interim orders made 29 June 2012 continue until the appeal is determined.

3. The respondent, Mr Morrell, caused to be filed in the court on 3 September 2014 a response to an application in a case and affidavit sworn by the respondent on 2 September 2014 filed the same date.  The respondent sought the following orders in his response and application in a case, namely: 

   (1) that the application be dismissed with costs. 

4. The court has read and considered the applicant’s affidavit that provides at paragraph 7, that the applicant seeks that the interim orders made by the court on 29 June 2014 continue and that the further interim orders made 13 June 2013 and 29 June 2014 also continue.  At paragraph 8 the applicant deposes that if she were to comply with the final orders made on 22 August 2014 prior to an appeal being heard by the Full Court, it would necessitate the applicant relocating from [omitted], Queensland to Newcastle within 28 days.  This statement is, of course, not wholly correct. 

5. The final orders are framed in such a way that should the mother choose to live with the children within 50 kilometres of the Newcastle post office then the children would live with the mother but if that was not the case then the children would live with the father.  What is apparent from the mother’s affidavit is that she would make the election open to her within the orders that would see the children live with the mother. 

6. The applicant suggests at paragraph 9 of her affidavit that, using her own words, “such a relocation would have both an emotional and financial effect not only on myself but on my children”.  At paragraph 10, 11 and 12 of the applicant’s affidavit, she deposes to having in place a lease that does not run out until November 2014.  The court notes that in effect the lease runs out in about eight weeks from today’s date.  The orders made on 22 August 2014 provide for the applicant to maintain the children’s residence within 50 kilometres of Newcastle post office within 28 days of the date of the orders. 

7. At paragraph 12 the applicant deposes to paying $280 per week in rent.  The applicant deposes that if she were required to relocate to Newcastle within 28 days she would be required to break her lease; that she would be required to lose her bond which she has placed on the property in the sum of $2000 and she will be required to pay rent on the property in the sum of $280 per week until such time as the property was leased to another person.  The applicant deposes that this would cause her a great deal of financial hardship in that she is on a single parent’s pension and currently not working. 

8. The court does not agree with the mother’s calculations.  Firstly, the applicant deposes that bond is made up of six weeks rent and is $2000.  The applicant also deposes that the rent is $280 per week.  If the bond of $2,000.00 was made up of six weeks rent that would mean that the rent was $333.33 per week.  If the bond was indeed six weeks rent at $280 per week, as stated by the applicant, the bond would be $1680, not $2000.  It is the view of the court the applicant has double counted her costs.  If the applicant forfeited a bond of six weeks rent, whatever the figure might be, she would have a shortfall of two weeks rent based upon the court’s calculations.  That is not the applicant’s stated position. 

9. The applicant deposes to losing the bond and also being required to pay rent on the property in the sum of $280 per week.  The evidence of the applicant about the issue of financial hardship is, on the face of the applicant’s affidavit, unreliable and the court is not able to make any determination as to whether the applicant’s relocation to Newcastle would indeed cause the applicant the financial hardship she describes at paragraph 12 of her affidavit. 

10. The applicant deposes to intending to enter into a new lease in November this year for a further 12 month period.  While the court notes that the applicant has not made an application for expedition, the court is conscious of counsel for the applicant’s suggestion that there may be dates for an expedited hearing in November or December 2014.  The applicant deposes at paragraphs 13 to 16 that the children have what the applicant describes as “a current routine” and have formed close friendships and relationships with family who reside in Queensland and friends that they have met through day care. 

11. The applicant deposes that [X] attends day care five days per fortnight and that the applicant has paid her kindergarten fees until the conclusion of term that the applicant deposes ends in October 2014.  The court notes the 28 day requirement within the orders made 22 August 2014.  The court also notes the costs of the kindergarten fees paid until the end of term in October 2014 are not particularised. 

12. The applicant sets out at paragraph 16 of her affidavit that if she were to be required to relocate to Newcastle with the children and the appeal was successful, she would be required to relocate back to Queensland and find new accommodation.  The applicant’s statement at paragraph 16 is erroneous and, in the view of the court, demonstrates a misunderstanding of the orders made on 22 August 2014 and process that would take place should the applicant’s appeal be successful. 

13. Firstly, the orders made by the court on 22 August are not such that, in the words of the applicant, she is “required” to relocate to Newcastle.  The orders provide for an election that allows the applicant to cause the children to reside in a certain area with her or, alternatively, that the children live with the father.  The court does not and cannot, for that matter, require the applicant to relocate.  Secondly, the applicant would not be required to relocate back to Queensland if the appeal was successful; that would be a matter for the applicant. 

14. Thirdly, the applicant does not demonstrate any understanding of the process or grounds of appeal in that if the applicant was successful in the matter, that is, the determination of the parties’ competing applications would be remitted back to the Federal Circuit Court of Australia for re-hearing before a different judge.  At paragraph 18 of the applicant’s affidavit she deposes to being concerned about the effect on the children of relocating midway through school term, particularly in the event of the applicant’s appeal being successful. 

15. The court notes that the applicant has not sought expedition of the hearing of the appeal.  The court does not have sufficient information before it that would allow the court to form a view about the children being relocated back to Queensland mid term.  The court notes that the applicant’s suggestion at paragraph 19 of her affidavit with respect to the children being enrolled in [omitted] lessons and the applicant having paid for [omitted] lessons for what she describes as a further month. 

16. While the court accepts that the applicant may be upset at the court having made the orders on 22 August 2014, this is not a matter that the court will, or properly should, give significant weight in an application for the orders of 22 August 2014 being stayed.  The court, interestingly, notes the last sentence of paragraph 22 of the applicant’s affidavit that states:  “I will also be required to implement time between Mr Morrell and the children on six occasions each fortnight which causes me great anxiety, given our poor communication and relationship since separation.” 

17. Such a statement, in the view of the court, is demonstrative of and goes towards the mother’s inability or willingness to facilitate and encourage a close and continuing relationship between the children and the father.  The court has read and considered the annexures to the applicant’s affidavit.  The court has heard and considered the submissions of counsel for the applicant.  The court has read and considered the affidavit of the respondent filed 2 September 2014.  The respondent deposes to being ready, willing and able to implement the final orders made on 22 August 2014.  The respondent deposes to meeting the costs of complying with the previous orders, in a sum estimated to be approximately $60,000 in total.  The respondent deposes to having contacted the [omitted] School and having been advised that an enrolment application will need to be submitted urgently, otherwise [X] will miss out on a placement at the school commencing in 2015.

18. The respondent deposes at paragraphs 5 and 6 of his affidavit as to the workings and practicalities of implementing the previous interim orders, where the children would on some occasions spend time with the father in a hotel room, and engage in frequent air travel.  The applicant’s stated intentions, to the effect making the election that would see the children live with the applicant pursuant to orders made on 22 August 2014 will eliminate the requirement of the children to maintain a regime of frequent air travel, or at times spend time with the father accommodated in a hotel room.

19. At paragraph 7 of the respondent’s affidavit, he correctly sets out that the previous then-existing interim orders of 13 June 2013 will become unworkable if the appeal is not heard and determined prior to the end of January 2015, as the previous then-existing orders require [X] to be delivered to the respondent at 2 pm on a Friday at Newcastle Airport, on the Friday she was spending time with the respondent in Newcastle, and require [X] to be delivered to the respondent at [omitted] in Queensland at 11 am on the Fridays she was to spend time with the respondent in Brisbane.

20. The orders of 13 June 2013 were the last significant set of interim orders that were made prior to the hearing, and those orders provided for [Y] to spend time with the respondent when the respondent is in Newcastle in cycle week 1, from 2 pm to 5 pm on a Friday, from 9 am to 5 pm on a Saturday, and from 8 am to 3.30 pm on a Sunday, and that [Y] spend time with the respondent in cycle week 2, when the respondent is in Queensland from 11 am to 5 pm on a Friday, and from 10 am to 5 pm on the Saturday and Sunday.

21. It must be made clear that the applicant seeks, in her application in a case, that the interim orders made on 29 June 2012 continue until the appeal is determined.  Those orders provided for [Y] to spend time with the father on a fortnightly repeating cycle, with [Y] to spend time with the father in Newcastle for two hours on a Friday, for two hours on a Saturday, and two hours on a Sunday, and in the second fortnightly period with [Y] spending time with the respondent in Queensland for two hours on a Friday, two hours on Saturday, and two hours on a Sunday.

22. The applicant’s proposal, as sought in her application in a case, would see [Y] spend some 12 ½ hours less with the respondent in the first fortnightly cycle, and some 14 hours less with the respondent in the second fortnightly cycle week.  The Court notes the discrepancy between the orders sought in the applicant’s application in a case and the orders that are sought in her affidavit.  There is no clarity given in that regard.  The orders made on 29 June 2012 provide for [X] and [Y] to spend time with the respondent on a fortnightly repeating cycle, with the first cycle to take place in Newcastle and the second cycle to take place in Queensland.

23. Time between the father and [X], as stipulated in the orders of 29 June 2012, commence at 3 pm on a Friday with [X] in the first cycle week, to be collected at McDonald’s in [A], at 10 am on a Friday at [B] McDonald’s in the second cycle week.  Should the appeal fail to be heard and determined prior to the commencement of school in 2015, the orders of 29 June 2012 as sought by the applicant will become, by virtue of [X] attending school, unworkable.

24. The issue of the start of school in 2015 and significant reduction in the amount of time [Y] would spend with the father if the stay were to be granted on the terms sought by the applicant in her application in case causes the Court to consider whether the appeal is one where the applicant has failed to consider the best interests of the children.  It was open at all times for the applicant to suggest the terms on which the stay might be granted.  The applicant has chosen, in her Application in the Case, to ask the Court to adopt the interim orders made more than two years ago.

25. Particular consideration must be afforded, in stay applications, where children are involved.  The decision in Clement & Clement (1981) FLC 91-013 is authority for the proposition that it is especially desirable to avoid frequent changes in custodial arrangements. Where an appeal appears to be based on substantial grounds, and is not a mere delaying tactic, if it can be dealt with in a reasonable time and the present circumstances of the child are satisfactory, it would be appropriate to grant a stay of proceedings, at least for a short period.

26. It is the view of the Court that the present circumstances, that being the terms on which the stay is sought by the applicant, are not satisfactory. 

1. In a decision in the matter of Sheldon & Weir (No 4) [2010] FamCA 1214, Ryan J set out the matters which have to be taken into account when determining an application to stay pending an appeal, where Her Honour said at paragraph 39:

   “ The authorities make plain that a stay is not ordered as a matter of right.  It is discretionary and the discretion to grant it or refuse a stay will depend upon circumstances of the particular case. In relation to a stay of parenting proceedings, the Full Court in Trahn & Long (No 2) [2008] FamCA of C 194 described the process thus:

   The principles both in the general law and in respect of parenting proceedings are well settled, see Commissioner of Taxation of the Commonwealth of Australia & Myer Emporium (1986) 160 Commonwealth Law Reports 220 at 230;  Alexander v Cambridge Credit Corporation (1985) 2 New Wales Law Reports at 685;  Jennings Constructions Limited v Burgundy Royal Investments Proprietary Limited (1986) 161 Commonwealth Law Reports 681;  Clement & Clement (1981) Family Law Cases 91-013;  JRN and KEN & IEG and BLG (1998), 72 Australian Law Journal Reports 1329 at 1332.

   The authority distresses 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 special or exceptional circumstances; 

   ·a person who has obtained a judgment is entitled to the benefit of that judgment; 

   ·the person who has obtained a judgment is entitled to presume the judgment is correct;

   ·the mere filing of an appeal is insufficient to ground 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 is appropriate to grant a stay;

   ·some preliminary assessment of the strength of the proposed appeal, where the applicant has an arguable case;

   ·the desirability of limiting its frequency its in any change in the child’s living arrangements; 

   ·the period of time in which the appeal can be heard;  and wether existing satisfactory arrangements may support the granting of a stay for a period of time; 

   ·the best interest of the child subject to the proceedings.”

2. The Court forms the view that there is a proper basis for the seeking of orders for a stay.  The Court is of the view that the respondent, having engaged in litigation over an extended period, and in circumstances where the Court has made significant adverse findings against the applicant, is in a position where he should be afforded a higher entitlement to the benefit of his judgment.  The Court considers that the respondent has obtained a judgment, and is entitled to presume the judgment is correct.

3. While the Court acknowledges that the mere filing of an application is insufficient to ground a stay, the Court considers that the appeal on its face alone appears bona fide.  The Court has considered the terms on which the stay is sought.  The terms are not just, and on their face become unworkable once [X] commences school in 2015.  The Court considers the balance of convenience and competing rights of both parties.

4. It is the view of the Court that the applicant finds herself in a somewhat fortunate position, in that she is leasing a property and that such a lease ends in November 2014, she is not dependent on employment in Queensland for financial support, and that [X] has not commenced her first year of school.  While the applicant complains about the inconvenience of relocating to Newcastle, the Court considers the inconvenience to the father and children of maintaining a regime of air travel and accommodation in hotel rooms, if the stay were granted on the terms suggested by the applicant.

5. In submissions made by counsel for the applicant, a concession was made that a failure to grant a stay would not render the appeal nugatory.  When assessing the strength of the appeal on a preliminary basis, the Court forms the view that the appeal is one seeking to review the discretion of the Court.  The fundamental principles governing the review of a discretionary judgment is the proposition that it would not be right to overturn a judicial decision solely on the basis of an appellate court’s preference for a different result.

6. The principle to be applied is found in House v the King (1936) 66 Commonwealth Law Reports 499 at paragraphs 504 to 505 that state:

   It is not enough that the judges composing the appellate court consider 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 irrelevant matters to guide or affect him, if he mistakes the facts, or 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 the result embodied in his 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 to properly exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewable on the grounds that a substantial wrong has in fact occurred.

7. The Court considers the desirability of limiting the frequency and change of the children’s living arrangements.  The applicant seeks a change in the children’s circumstances by virtue of the terms on which she asks for the stay to be granted as found within the applicant’s application in a case.  The orders that are appealed provide for a change in the children’s living arrangements.  The Court forms the view that such a change, if made only for a limited time, will be in the children’s best interests, and given the children’s age will be of minimal disruption as compared to what might have been should the children, for instance, have been enrolled in high school.

8. The Court is not satisfied as to the period of time in which the appeal might be heard, particularly in circumstances where the applicant had not made an application for expedition of the appeal.  Again, the Court is concerned and takes a view that it is unlikely an appeal would be heard and determined prior to [X] commencing school in 2015, and that if the stay were granted on the terms sought by the applicant the arrangement for the children to spend time with the father would be both not in the children’s best interest as a result of the significant reduction in hours [Y] would spend with the father, and unworkable if [X] were to remain at school on the Fridays once per fortnight the orders require her to spend with the father.

9. For the reasons above the Court makes the following orders.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Myers

Associate: 

Date:  24 September 2014