Bostoi and Bostoi (No 2) - [2010] FamCA 1139

FAMILY COURT OF AUSTRALIA

BOSTOI & BOSTOI (NO. 2)

[2010] FamCA 1139

FAMILY LAW – PRACTICE AND PROCEDURE – Application by husband for stay of orders pending hearing of appeal – Application dismissed.
FAMILY LAW – COSTS – Stay application

Family Law Act 1975 (Cth)

K v B [2008] 37 Fam LR 1

APPLICANT:

Mr Bostoi

RESPONDENT:

Ms Bostoi

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Sydney

FILE NUMBER:

SYC

2851

2009

DATE DELIVERED:

17 December 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta

JUDGMENT OF:

Justice Stevenson

HEARING DATE:

10 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Schroder

SOLICITOR FOR THE APPLICANT:

Watts McCrawy Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Nash

SOLICITOR FOR THE RESPONDENT:

Feeney Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Falloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Sydney

Orders

That the father’s Application in a Case filed 8 December 2010 is dismissed.
That the father pay the mother’s costs in the sum of $4,400.00 by 31 January 2011.
That the father pay the Independent Children’s Lawyers costs in the sum of $1,144.00 by 31 January 2011.

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

FAMILY COURT OF AUSTRALIA AT TBA

FILE NUMBER: SYC 2851 of 2009

MR BOSTOI

Applicant

And

MS BOSTOI

Respondent

REASONS FOR JUDGMENT

Stay Application

On 27 October 2010 I delivered judgment and made final parenting orders in respect of the parties’ two children:
C born in September 1997 (13); and
L born in April 2001 (9).
On 23 November 2010 the father filed a Notice of Appeal.
On 8 December 2010 the father filed an Application in a Case. He purported to seek a stay of the operation of certain of the orders of 27 October 2010 “on condition”. The effect of such an order would be to put in place, pending the hearing of his appeal, the regime which he sought unsuccessfully at trial.
I enquired of counsel who appeared for the father on this application why I should not conclude that he was seeking, in effect, an interim variation of my final orders. Counsel for the mother described the father’s application as “a back-door appeal”. Counsel for the father answered my query by words to the effect: “I would not argue against Order 4 being considered an application to vary final orders, so the father asks for week-about to be restored”.
The father sought leave to issue a subpoena for production of the notes of a counsellor appointed pursuant to Order 12 of 27 October 2010. This order specifically described this counselling as “confidential” and obliged each parent to ensure that: “the children’s privacy with respect to their counselling is respected, specifically that neither parent shall ask or encourage the children to disclose anything they wish to discuss with the children’s counsellor or what was said during discussions between the children and the children’s counsellor”. Nonetheless, the father saw fit to try to obtain the confidential counselling notes in the hope that he would find complaints by the children about the present arrangements which he could use to bolster his case. I refused the father leave to issue this subpoena on the strength of this order and because of my concern that a therapeutic relationship between the children and their counsellor would be likely to be compromised.
In K v B [2008] 37 Fam LR 1 the Full Court said:
“[20] In dealing with a subsequent stay application in the same case (EJK v TSL (No 2) (2006) 35 Fam LR 590 ; [2006] FamCA 806) the court noted the relevant principles to be applied (at [16]–[17]):
[16] It facilitates our discussion to set out the principles espoused in Clemett and Clemett (above) to which we have already referred. At 76,175 Nygh J 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. If the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt with within a reasonable time and the present circumstances of the child are satisfactory, it will be appropriate to grant a stay of proceedings for at least a short period. In this case we are satisfied that the appellant is appealing seriously on the merits of the case, that an appeal can be (and has in fact been) expedited within a reasonable time and that the child is properly looked after by the father. There is no indication that his Honour gave any consideration to those matters. If his Honour did, we are of the view he did not give sufficient consideration to them. For those reasons, we are of the view that his Honour exercised his discretion wrongly and consequently that the appeal should be upheld”.
[17] Although we note that this decision pre-dates the Family Law Reform Act 1995 (Cth) when the whole of Part VII of the Family Law Act 1975 (Cth) (the Act) was subject to “the best interests test”, we accept the principles espoused are relevant to this application, and the child’s best interests, even if not the paramount consideration, on the facts of this case are a significant consideration. The importance of the consequences for a child of granting or refusing a stay are well recognised. In JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332 Kirby J said:
“In my opinion, some adaptation of the rules stated in the cases governing stays in this Court must also occur in cases which affect significantly third parties who are not parties before the Court and, in particular, children whose welfare must always be in the mind of a court in making an order affecting their interests”.”
These children have already been subjected to a number of changes in their living arrangements. They lived with both of their parents prior to the separation in May 2009. Between 8 May 2009 and 24 June 2009 they lived with the father and had no contact whatsoever with the mother. Between 24 June 2009 and 16 December 2009 they lived with the father and spent time with the mother from 5.00pm on Saturday until 5.00pm on Sunday and each Wednesday night. They lived in a week-about arrangement between 16 December 2009 and 27 October 2010. Since the latter date they have lived with the mother and spent alternate weekends and each other Wednesday night with the father.
The father now seeks to introduce another substantial change, pending the hearing and determination of his appeal. If he is unsuccessful the arrangements will again change to alternate weekends, each other Wednesday and half of the school holidays with him and primary residence with the mother. The effect of a stay would thus have the potential for six changes in the children’s living arrangements since 2009.
Counsel for the father conceded that “no argument can be put that refusal of a stay will render his appeal nugatory”. That proposition is clearly correct.
The father relied on complaints allegedly made about the current arrangement by C since 27 October 2010. He contended that the present orders do not operate in the children’s best interests.
On the other hand, the mother swore an affidavit in which she set out statements allegedly made by C to the effect that he is happy with the current arrangement. The mother’s affidavit also set out statements allegedly made by the children which suggest that the father is continuing to put pressure on them to align with his position for example:
[C]: “Dad says I have rights and I don’t have to do what the orders say I can do whatever I want” and “quickly mum we have to get home dad said we must get home quickly because we are now in his time…”
I found that the father placed substantial pressure on the children to align with his position and I thus treated with great caution his allegation that they have a genuine wish to live with him. It seems to me that he has continued with this behaviour and I thus treat his evidence as to alleged complaints by C about the current arrangement with similar caution.
I found the father to be a “controlling, dominating person who lacks any real empathy with the children”. In part this assessment was based on evidence from his own psychiatrist, Dr S. I have no reason to think that he would refrain from dominating, controlling and pressuring the children if they spend increased time with him. After days of evidence, I concluded that they need respite from his behaviour. The orders now sought by the father are hardly in the children’s best interests.
I have doubts as to father’s bona fides in bringing both his appeal and the present application. At the end of the trial his then Senior Counsel informed me that he would not support the Independent Children’s Lawyer’s (“ICL”) proposal for a continuation of the week about arrangement by way of final orders. My note of this part of these submissions on his behalf was as follows: “the father does not endorse the ICL’s position and does not adopt the ICL’s position as a fall back if he does not get primary residence. He does this knowing that the children may live primarily with the mother. This is very child focussed”.
Nonetheless, the father urged a reinstatement of the week-about arrangement in this application. I did not understand why his rejection of this arrangement in May 2010 was “very child-focussed” but is now “in the children’s best interests”. It is hardly “child-focussed” of the father to try to cut across the confidentiality of the children’s counselling in the hope of bolstering his position in this application.
The father indicated that his appeal is likely to be heard in mid 2011. He intends to file an application for expedition when the transcript of the trial becomes available. I am unable to say what might be the prospects of success of the expedition application. I wonder, however, why his appeal would be deserving of more expeditious treatment than the many other appeals which await determination.
Counsel for the mother submitted that the appeal has no merit, a contention which was supported by the ICL. I would go no further than to observe that no ground of appeal appeared to me to carry obvious prospects of success. I comment only on the alleged “factual error”, being that I found that there was no evidence from any person other than the father that C expressed a wish to live with him. The father relied on a statement to the effect by the ICL to Dr Q. This evidence is incapable of being tested and attracts the same caveats as any other expression of views by C.

Conclusion

For these reasons, I dismissed the father’s application. The mother and the ICL sought that the father pay their costs. The father resisted these applications.

Costs

There was no evidence of the financial position of the father. The mother set out in her written submissions that she earns $600.00 net per week. The father operates his own business. He paid senior counsel to appear for him at the five day trial and he can afford the costs of a transcript for his appeal. Senior counsel has been engaged to appear for him on the hearing of the appeal.
The mother is employed by a suburban council. She has already been put to the substantial cost of the five-day trial.
Neither party was in receipt of a grant of legal-aid. The ICL is an in-house lawyer at the Legal Aid Commission of New South Wales and her counsel is paid in accordance with their scale.
It seems to me that the father’s application was ill-conceived at the outset. His counsel conceded that, in effect, the father was seeking an interim variation of my final orders. He then retreated to seeking a reinstatement of the week-about arrangement which he rejected at the trial.
The father was wholly unsuccessful in his application. He put the mother and the ICL to unnecessary expense.
For these reasons, the father should pay the costs of the mother and the ICL in the present application.

Conclusion

The father submitted that each party should pay his or her own costs. His written submissions did not address the issue of the ICL’s costs with any particularity.
The father submitted that he should not bear any costs penalty in respect of his unsuccessful oral application for leave to issue a subpoena. He complained that the mother had sought precisely the same information by way of letter dated 6 December 2010 to C’s school counsellor. I was told that the father sought leave to issue a subpoena to obtain notes of Dr D, the confidential counsellor appointed pursuant to my orders. No issue was taken on behalf of the father with my comment about the potential damage to a therapeutic relationship.
The father submitted that his application was brought on a bona fide basis because C has complained to him about the current arrangements and “vote[d] with his feet”. According to the father C went to his house, of his own volition, on 20 November 2010 and stayed until 7.00pm. C then returned to the mother’s home. The father did not mention that C went to his house to collect a toy that he had left there, with the mother’s agreement, on the basis that he would return in time for dinner.
The father alleged that C arrived unexpectedly at his house after school on 2 December 2010. He stayed that night and returned to the mother’s home after school the next day. He stayed at the father’s home, with the mother’s agreement, on 6 December 2010.
I regard these events as the product of the pressure which I found to be placed on both children by the father. I can only infer that he has sustained, if not increased, this pressure after failing to achieve his wishes at the trial. I maintain my view of the inappropriateness of his application.
The only aspect of the father’s costs submissions which seemed to me to have any merit was as to the quantum of costs sought by the mother. She claimed $8,095.45, being $5,500.00 on account of counsel’s fees and the balance for solicitor’s costs. On behalf of the father it was pointed out that the hearing lasted about 45 minutes and the mother relied on only a five page affidavit. It was submitted that the mother must be seeking indemnity costs, which appears to be the case. No alternative figure appeared in the father’s written submissions.
I am satisfied that the father should contribute to the mother’s costs and pay the amount claimed by the ICL in full. In the absence of any alternative quantum for the mother’s costs, I can only select a figure. I will fix the mother’s costs at $4,000.00 plus GST of $400.00

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 17 December 2010.

Associate:

Date: 17 December 2010