Blakely & Morrell (No.2) - [2014] FamCAFC 226

FAMILY COURT OF AUSTRALIA

BLAKELY & MORRELL (NO 2)

[2014] FamCAFC 226

FAMILY LAW – APPEAL – REFUSAL OF STAY – Where trial judge refused to stay the operation of parenting orders requiring the mother to relocate interstate pending the hearing of the appeal against those orders – Where appeal against discretionary judgment –Where his Honour did not accept that the true effect of his orders requiring two young children to relocate was that their mother would also have to relocate in order to continue being the primary carer – Where his Honour did not adequately engage in his reasons with the fact that the children had lived with the mother in Queensland for nearly all their lives and had little connection to the area in which the father lived –Where the decision was plainly wrong – Appeal allowed – Where stay granted pending determination of substantive appeal.

Family Law Act 1975 (Cth): s 117(1)

CDJ & VAJ (1998) 197 CLR 172
Clemett & Clemett (1981) FLC 91-013

Trahn & Long (No. 2) [2008] FamCAFC 194

APPELLANT:

Ms Blakely

RESPONDENT:

Mr Morrell

FILE NUMBER:

SYC

4645

2010

APPEAL NUMBER:

133

2014

DATE DELIVERED:

27 November 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

May, Ryan & Benjamin JJ

HEARING DATE:

25 November 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

10 September 2014

LOWER COURT MNC:

[2014] FCCA 2212

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Levick

SOLICITOR FOR THE APPELLANT:

Peter Hamilton & Associates

COUNSEL FOR THE RESPONDENT:

Mr Page SC with
Mr Kelly

SOLICITOR FOR THE RESPONDENT:

Emery Partners

Orders

The appeal against orders made by Judge Myers on 10 September 2014 be allowed.
The orders made by Judge Myers on 10 September 2014 be set aside.
The application for a stay of Orders 2-18 inclusive made by Judge Myers on 22 August 2014 be granted and the stay continue until the determination of Appeal No 118 of 2014.
Failing agreement between the parties, pending determination of Appeal No 118 of 2014 the orders made by Judge Myers on 13 June 2013 continue in operation.
The mother’s application to adduce further evidence in the appeal being paragraphs 14, 23, 33 and 48 of her affidavit filed 7 November 2014 be granted.
The father pay the mother’s costs of and incidental to appeal EA 133 of 2014, as agreed or to be assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Blakely & Morrell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 133 of 2014
File Number: SYC 4645 of 2010

Ms Blakely

Appellant

And

Mr Morrell

Respondent

REASONS FOR JUDGMENT

By Notice of Appeal filed 16 September 2014, Ms Blakely (“the mother”) appeals against orders made by Judge Myers on

10 September 2014 whereby his Honour dismissed her application to stay parenting and other orders which he had made on 22 August 2014.
Crucial to this appeal, the parenting orders in relation to children aged five and two provided that the children shall live with the mother conditional upon the mother maintaining the children’s residence at a place within a radius of 50 kilometres of the town where the father currently resides in New South Wales within 28 days of the date of the orders. They lived in Queensland prior to the orders.
In the event the mother did not relocate the children, they would leave her care and thereafter live with Mr Morrell who is their father (“the father”). It is important to record at the outset that the parties were in agreement that the children should continue to live with the mother and neither they nor the family consultant who gave expert evidence, suggested it would be in the children’s best interests to primarily live with the father. This involves no criticism of the father but reflects the fact that these are two young children who had always lived with the mother and she is the person to whom they are primarily attached.
In any event, the application for a stay having been dismissed, some four to six weeks ago the mother moved to the geographical area that enables the children to continue to live with her. With that property listed for sale it was a fragile tenancy and subject to termination on relatively short notice. Evidence tendered in the appeal demonstrated that the mother has been notified she must vacate on or before 10 December 2014. If she succeeds on the stay appeal she and the children would return to Queensland, where but for a few months she (and one child) have lived since June 2010. The younger child has lived in Queensland his entire life.
By her Amended Notice of Appeal filed 7 November 2014 the mother also appeals against the orders made on 22 August 2014. Those appeals were expedited and listed concurrently and heard two days ago. Although we are not in a position to immediately determine the appeal in relation to the

August 2014 orders, the difficult circumstances in which the mother and children find themselves makes it necessary to determine the stay appeal separately and immediately.
In so doing, we must also deal with the mother’s application to adduce further evidence in the stay appeal filed on 7 November 2014.

Factual Background

The factual background to this case is set out in some detail in the reasons for judgment delivered by Judge Myers on 22 August 2014 and again, to a small degree, in his reasons for judgment of 10 September 2014.
It is only necessary to state here that the parties met in late 2006 when the father, who is a medical professional, came to country New South Wales for work. Within a short period, the mother moved to Sydney to live with him.
By the time their daughter X was born, having already moved to another country town and for reasons associated with the father’s employment, the parties were living on the south coast of New South Wales.
After a brief separation and reconciliation, the parties separated in June 2010 following which the mother took their daughter, who had just turned one, and moved to Queensland where she lived with her sister. Without court intervention, the parties reached an agreement concerning X’s time with the father which essentially involved the mother taking their daughter every four weeks for five to eight days at a time or so to see him on the south coast. When they did so the mother and child stayed with the father.
On the father’s application, final orders for the settlement of property were made by consent on 27 July 2010.
Again, for reasons associated with his employment, in March 2011, the father moved from the south coast to Town B which is on the western shores of Lake Macquarie. The informal arrangements for X to spend time with the father were continued.
His Honour found that for about three to four months, between April 2011 and July 2011 the parties rekindled their relationship (about which there is no challenge) and that for a significant portion of that time the mother and X lived with the father in Town B. It is during this period that the mother conceived the parties’ son, Y who was born in early 2012.
There is no dispute their relationship ended when, on 24 July 2011, the mother and X returned to live in Queensland, this time with her parents. For the mother, one of the primary attractions of Queensland is that this is where her parents and sister reside, each of whom provides her with the practical and personal support which, as a single parent, she values.
Again, without needing court orders but not without some difficulty, the parties were able to ensure that X continued to see the father. In essence this involved the mother and X, at the father’s expense, flying back and forth for a few days at a time and the father doing the same. Managed in this way X spent time with the father (with the mother present) about every three or four weeks. With the impending birth of the parties’ son, the mother made her last trip to the father’s home in October 2011.
By then she was also looking to obtain secure and independent accommodation and, given her parlous financial position, she approached the Red Cross. With their assistance the mother secured her own rental accommodation in Queensland, albeit (unless renewed) her lease is due to expire on 15 December 2014.
On 15 January 2012 the father informed the mother he had instructed solicitors to commence proceedings for orders that she relocate (with the children) to where he lives.
By then the mother was due to give birth to Y. The parties’ relationship had deteriorated to such an extent that the mother sought police assistance for what she described as the father’s harassment and intimidation albeit this characterisation of his behaviour was contentious. She had made it plain to the father that she found dealing with him stressful and she did not want him to attend Y’s birth or, during her confinement, to care for X. Consistent with her concern the mother made an application for a state protection order. An interim order was subsequently made (without admissions by the father) and in June 2012 the proceedings were withdrawn and the order discharged.
Y was born in early 2012.
Within a fortnight, the father commenced these proceedings in the Federal Magistrates Court (now Federal Circuit Court). Stated broadly, he sought orders that the children live with the mother and that she establish their home reasonably close to where he lived. The mother opposed the father’s application and sought orders that the children live with her (in Queensland) and the father spend time with them thereabouts.
It would seem that with Y only a few weeks old, from then until mid-2012 the children saw little of the father. Essentially this involved short periods facilitated by the mother’s sister and slightly longer (day) periods in April 2012. Thereafter the children’s time with the father increased and was adjusted in the manner set out in interim orders made on 29 June 2012 and

13 June 2013. It is appropriate to observe that the father has met significant travel and accommodation costs associated with the mother and children’s regular travel to Town B and his own regular travel and accommodation costs to Queensland.
The hearing before the primary judge commenced on 19 February 2013 and, in five tranches and subject to written submissions was completed on

12 February 2014. Written submissions were received in April 2014 following which his Honour reserved his decision.
His Honour published his reasons and made the substantive orders on 22 August 2014. It bears repeating that the effect of his Honour’s orders was that if the mother wanted the children to continue to live with her she had 28 days to establish a home in the Town B region.
Without any delay, on 27 August 2014, the mother filed a Notice of Appeal in relation to the August 2014 orders (later amended) and an application that pending determination of her appeal those orders be stayed. As he did before us, the father argued against the mother being granted a stay. His Honour heard and dismissed her stay application on 10 September 2014, with that judgment the subject of these reasons.
As already mentioned, a few weeks ago the children and mother moved from Queensland to an area within the geographical region of Town B.

The primary judge’s reasons

There is no challenge made to the correctness of his Honour’s statement of the principles governing the granting of a stay in child related proceedings. Those principles are well settled and stress the discretionary nature of the application which should be determined on its merits (Trahn & Long (No. 2) [2008] FamCAFC 194). We agree with his Honour that the well settled law establishes that the principles relevant to a stay of orders of the type with which this appeal is concerned 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 will be appropriate to grant the 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 a stay for a short period of time; and
·the best interests of the child the subject of the proceedings.
Although we accept that these were the principles by which his Honour found that the stay application should be dismissed, as we will shortly explain, those principles were misapplied.
His Honour commenced his reasons for judgment by rejecting the mother’s evidence that the effect of the orders was 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 [Queensland], Queensland to Newcastle within 28 days” [4]. His Honour, at [5], explained the effect of his orders in the following manner:
The final orders are framed in such a way that should the [mother] choose to live with the children within 50 kilometres of [Town B] 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].
It follows, that his Honour approached the determination of the mother’s application for a stay on the basis that it was entirely a matter for her whether she continued to live in Queensland or moved to an area near Town B [5].

His Honour’s gloss on the true effect of his orders should not pass without comment and would tend to suggest that he either did not accept the mother’s unchallenged evidence that rather than lose the children she would relocate (which from his August 2014 judgment would not appear to be the case) or he had little or no regard for the obvious personal and financial hardship that compliance with his primary order would visit on the mother and the children. Regrettably, it must be said that the latter proposition would appear to be correct.
Some attention was then given to the mother’s financial circumstances and, whether was she to break the lease on her rental property she would, forego about $2,000 in rental bond or, as his Honour seemed to prefer, only $1,680 [8].
Although his Honour accepted that the mother was not in paid employment and her income comprised solely social welfare payments, by reference to his analysis of the bond refund, her evidence about the financial hardship which a relocation would occasion was rejected. Thus the stay application was determined on the basis that he could not be satisfied that the move interstate would involve the financial hardship which the mother described [9].
In a similar vein, his Honour rejected the mother’s evidence that were she to relocate and then succeed on her appeal against the substantive orders she would have lost her rental accommodation in Queensland and would need to find new accommodation for herself and the children [12]. Somewhat surprisingly, his Honour repeated his observation to the effect that whether or not the mother moved was entirely a matter for her [13].
His Honour is critical of the mother’s proposal that if a stay was granted, instead of the interim orders dated 13 June 2013 becoming the operative orders, the children should spend time with the father in accordance with interim orders made on 29 June 2012 [22]. As his Honour correctly pointed out, this would result in Y spending approximately 12½ - 14 hours less with the father each fortnight. And, with X due to commence school in early 2015, alternate Friday morning changeovers near the mother’s Queensland residence and Friday afternoons near the father’s residence would be unworkable [23].
The father’s evidence that he was willing and able to implement the orders made on 22 August 2014 and, as at the date of hearing, had spent approximately $60,000 in the costs of the children spending time with him pursuant to various interim orders, was accepted [17].
Against this background, at [28-35] of his Honour’s reasons, he sets out those factors by which the stay application was decided. Those factors which weighed in favour of the grant of a stay may be summarised as follows:
·there is a proper basis for seeking to stay the substantive orders; [28]
·the appeal is bona fide [29]; and
·at least by implication, the appeal is not devoid of merit.
On the other hand, the factors which weighed against a stay being granted were:
·it was conceded that a refusal to grant a stay would not render the appeal nugatory [31];
·after extensive litigation which resulted in adverse credit findings against the mother [28];
·the mother had not sought that her appeal be expedited [34];
·finding that the mother is unable or unwilling to facilitate and encourage a close and continuing relationship between the children and the father [17];
·meant the father was entitled to “…a higher entitlement to the benefit of his judgment” [28];
·a return to either set of interim orders would not be just [29];
·the interim orders would become unworkable once X commences school [29];
·the mother was in the fortunate position of being unemployed with a lease due to end and X not having commenced school [30];
·any inconvenience to the mother was outweighed by the inconvenience to the father and children of maintaining regular air travel and spending time in hotel rooms [30]; and
·implementation of the substantive orders would involve “minimal disruption” for the children compared, for example, to children “…enrolled in High School [33]”.

The grounds of appeal

Four grounds of appeal from the dismissal of the stay application are propounded by the mother. They succinctly assert error in:
·an absence of reasons (ground 1);
·failing to give proper reasons taking into account the relevant considerations (ground 2);
·is plainly wrong (ground 3); and
·error in the exercise of his discretion (ground 4).

Discussion and Conclusion

It is useful to address ground 2 first.
As we understood it, this ground focuses on his Honour’s failure to deal with the reality of the orders which he made and to appreciate the hardship of orders which, in the context of a hearing that commenced 18 months earlier, gave the mother 28 days to move interstate.
Allied to this is what is said to be his Honour’s failure to adequately engage with the fact that the children had lived virtually their entire lives in Queensland and that the orders required they and the mother establish new lives in an area with which, at best, they were passingly familiar. There is considerable force in both propositions.

In our view, his Honour’s reasons reflect a significant failure to appreciate or give appropriate weight to the significant changes his orders imposed on the mother and children’s settled lives in Queensland. We cannot understand how his analysis of the loss involved in rental bond could be used to justify his decision to reject the mother’s evidence about the financial hardship and losses involved in moving the children’s home interstate. It was incumbent on his Honour to balance his findings concerning the rental bond with the unchallenged fact that at that time the mother’s income solely comprised of social welfare payments. Also, rather than describe her lack of employment as “fortunate” he ought to have reflected on the volume of evidence in the substantive hearing about the difficulties she had obtaining independent rental accommodation and the degree of difficulty inherent in being required to give up her home and, in her circumstances, attempt to establish herself in another state. If his Honour considered that by ordering the father to pay up to $2,000 towards the mother’s removal costs and up to a similar amount towards her rental bond plus a contribution of up to $300 per week for her to her landlord, the mother’s financial difficulties were resolved, it was necessary for him to explain how.
There can be no doubt that his Honour glossed over the facts that the children had lived virtually their entire lives in Queensland and that the father was the only person with even remotely significant ties to the Town B region. In the circumstances of this case, it was incumbent upon his Honour to give careful attention to the line of authority commencing with Clemett & Clemett (1981) FLC 91-013 which emphasises the importance in cases involving children to limiting the frequency of changes in their living arrangements. Yet this matter received scant attention and failed to take into account the father’s evidence at trial that he was in a position to continue his employment in Town B and for the purpose of spending time with the children obtain rental accommodation near to where the mother lived and he could afford to regularly fly back and forth to see the children. There was thus an obvious arrangement which avoided the inconvenience of hotel accommodation for the father and children and the children needing to fly as often as they had been, and without the wholesale change in the children’s circumstances frowned upon by Clemett.
Ground 2 is established.
The challenges raised by grounds 3 and 4 are, in effect, subsumed by ground 2 and we need do no more than agree with the proposition contained in ground 3, that his Honour’s decision is plainly wrong.

Application to Adduce Further Evidence on the Appeal

Although the mother initially sought to introduce on the appeal the entirety of her affidavit filed on 7 November 2014, she ultimately pressed the introduction of only paragraphs 14, 23, 33 and 48. In addition, counsel for the mother was permitted to tender the notice of termination of tenancy of the property rented by the mother. Senior counsel for the father appropriately conceded that this evidence was relevant, albeit provided late.
In our view, the evidence sought to be introduced easily falls within that category of case described in CDJ & VAJ (1998) 197 CLR 172 by McHugh, Gummow and Callinen JJ at [114] as evidence that:
“No doubt the Full Court [of the Family Court] will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings reheard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial”.
It follows, that we are satisfied the mother continues to receive social welfare payments and within a few weeks must vacate her property and that she and the children can immediately return to Queensland. Whether or not she and the children will be able to continue to occupy their Queensland home until the substantive appeal is determined is uncertain but, her history of being able to renew the lease on that property to date makes it is safe for us to proceed on the basis she can. As the father said in the trial the mother has the support of her family.

Disposition of the matter

Having found merit in ground 2, the appeal must be allowed and his Honour’s orders set aside.
For the same reasons, we are satisfied his Honour fell into error in refusing to grant the mother’s stay, we are satisfied that the 22 August 2014 orders under appeal should be stayed pending determination of the substantive appeal.
In the event the 22 August 2014 orders were set aside, there was no agreement about the orders which should then govern the children’s time with the father. In our view, the appropriate course is for the parties to come to an arrangement (as they have previously) to facilitate the children having regular time with the father in Town B and Queensland. If they are unable to reach agreement, the most recent interim orders, namely those made on 13 June 2013 will apply. So that the point is not overlooked, we are aware that upon X commencing school there might need to be an adjustment to the Friday commencement time but it may be that the parties can secure an accommodation from her school which balances school expectations with the practical realities of the situation for now.

Costs

At the conclusion of the hearing we invited submissions on the question of costs. In the event that the appeal was successful the mother sought an order for costs against the father. Unless the court is satisfied there are justifying circumstances for an order for costs, the effect of s 117(1) of the Family Law Act 1975 (Cth) (“the Act”) is that parties ordinarily bear their own costs of proceedings.
Counsel for the mother submitted that the mother’s parlous financial circumstances, the father’s superior financial circumstances and that she would have been wholly successful, would constitute justifying circumstances. We agree. In our view, the father ought to have recognised the strength of the stay application and the stay appeal and conceded the appeal without the mother incurring what, in our view, were unnecessary legal expenses. An order for costs as sought by the mother is appropriate.

I certify that the preceding fifty two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Ryan & Benjamin JJ) delivered on 27 November 2014.

Associate:

Date: 27 November 2014