Brennan & Shaw (Stay Appeal)
[2008] FamCAFC 138
•12 September 2008
FAMILY COURT OF AUSTRALIA
| BRENNAN & SHAW (STAY APPEAL) | [2008] FamCAFC 138 |
| FAMILY LAW - APPEAL AGAINST DISMISSAL OF APPLICATION FOR STAY – FINAL PARENTING ORDERS – CHANGE TO UNSUPERVISED TIME WITH FATHER – Where mother appealed trial Judge’s dismissal of her application for a stay of final parenting orders (“the substantive orders”) pending appeal – Where appeal against the substantive orders had been expedited – Whether refusal to grant stay rendered nugatory the mother’s appeal against the substantive orders – Where mother asserted father had ‘some unspecified mental disorder or disease’ – Where single expert found no evidence of risk to child if time between father and child not supervised – Where mother could not point to any evidence that there was a risk of harm – Where trial Judge found child’s best interests were not served by current arrangement – No appealable error in the exercise of discretion by the trial Judge – Appeal dismissed. FAMILY LAW - COSTS – Where applicant mother unsuccessful – Costs of this application reserved to the hearing of the appeal against the substantive orders – Leave to relist before the Full Court in the event that the appeal against the substantive orders does not proceed. |
| Evidence Act 1995 (Cth) – s 135 Family Law Act 1975 (Cth) Family Law Reform Act 1995 (Cth) Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) |
| Clemett and Clemett (1981) FLC 91-013 EJK and TSL (2006) FLC 93-287 EJK and TSL (No 2) (2006) 35 Fam LR 590 EJK and TSL (No 4) [2006] FamCA 1022 Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716 House v King (1936) 55 CLR 499 K and B (2006) FLC 93-288 M v M (1988) 166 CLR 69; (1988) FLC 91-979 |
| APPELLANT: | Ms Brennan |
| RESPONDENT: | Mr Shaw |
| FILE NUMBER: | SYF | 3250 | of | 2006 |
| APPEAL NUMBER: | EA | 102 | of | 2008 |
| DATE DELIVERED: | 12 September 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Boland & Stevenson JJ |
| HEARING DATE: | 9 September 2008 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 3 September 2008 |
| LOWER COURT MNC: | [2008] FamCA 744 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Gould |
| SOLICITOR FOR THE APPELLANT: | R A Bayliss & Co |
| COUNSEL FOR THE RESPONDENT: | Mr Watkins |
Orders made 9 september 2008
That the appeal be dismissed.
That the respondent father’s costs be reserved to the Full Court determining the substantive appeal (EA 97 of 2008).
That, in the event that the substantive appeal does not proceed to determination, there be liberty to re-list the matter before the Full Court on the question of the respondent father’s costs of this appeal.
IT IS NOTED that publication of this judgment under the pseudonym Brennan & Shaw (Stay Appeal) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 102 of 2008
File Number: SYF 3250 of 2006
| Ms Brennan |
Appellant
And
| Mr Shaw |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed on 5 September 2008, Ms Brennan (“the mother”) sought to appeal orders made by Fowler J on 3 September 2008. Those orders were orders dismissing an application for a stay of earlier orders of his Honour made on 12 August 2008 at the conclusion of defended parenting proceedings under Part VII of the Family Law Act 1975 (Cth) (“the Act”) between the mother and her former partner, Mr Shaw (“the father”), pending an appeal.
The parenting proceedings involved competing applications in respect of the parties’ only child, O. The child is presently aged 2 years 6 months, and she has lived primarily with the mother since her birth. The child had, up to the date of his Honour’s orders, spent time with the father, but such periods were subject to supervision by a member of the father’s family, or occurred during the child’s attendance at her pre-school day care facility. His Honour recorded that the father had experienced 173 occasions spent with the child on a supervised basis.
His Honour published his reasons for judgment (“the substantive judgment”) and made comprehensive parenting orders on 12 August 2008 (“the substantive orders”). The substantive orders provide for the parties to have equal shared parental responsibility for the child, and further provide, in broad terms, for the child to live with the father for defined periods on an unsupervised basis, which periods of time are to increase on the child attaining various ages (3, 5, 7 and 10 years). The orders also provide for school holiday periods to be spent with the father on the child commencing her schooling, other special occasions, and other arrangements concerning the child’s welfare. Order 6 of the orders provides for the child to immediately commence living with the father each Wednesday evening from 6.00 pm to 8.00 am the following day, each Friday from 8.00 am to 6.00 pm and one night each alternate weekend from 10.00 am Saturday to 10.00 am Sunday. The orders are substantially the same as those submitted by the independent children’s lawyer, Mr Adamson, as being in the best interests of the child.
On 18 August 2008 the mother filed a Notice of Appeal against his Honour’s substantive orders. On 5 September 2008 this appeal was filed, together with an application for expedition of both appeals. On 8 September 2008 Boland J expedited both appeals, and listed the stay appeal for hearing on an urgent basis on 9 September 2008.
The father has filed an application for security for costs of the substantive appeal, and that application will be listed before a Full Court in due course.
Among the grounds relied on in the substantive appeal is an assertion that the trial Judge erred in failing to make an order for ongoing supervision of the time spent between the child and the father, and that his Honour erred in failing to “refer the matter back to the independent expert for further consideration and investigation”. It is also asserted his Honour failed to give adequate reasons for why no supervision order was made as “it was the central issues [sic] in the case” (ground 4).
The mother in the stay appeal relied on eight grounds, including an assertion that the trial Judge erred in failing to grant a stay of his orders in circumstances where the child had not spent any unsupervised time with the father, and had not spent any period overnight away from the mother or the maternal grandmother. It was also asserted that the trial Judge erred in not properly considering the mother’s proposed application for expedition, which if successful, would result in a relatively short period until the hearing of the appeal against the substantive orders, her willingness to prosecute the appeal anywhere in Australia, and that the mother proposed the stay be on condition that his Honour’s orders be implemented, albeit on a supervised basis.
The mother also asserted in ground 7 of the grounds of appeal that the trial Judge had erred by “misdirecting himself as he did in respect of the strength of the Appellant’s Grounds of Appeal”.
On 9 September 2008 we dismissed the stay appeal, and made orders reserving the costs of the stay appeal to the Full Court hearing the substantive appeal. On dismissing the appeal we indicated we did not accept that the trial Judge had erred in the exercise of his discretion in refusing the stay of his orders, and that we would publish reasons for our decision shortly. These are our reasons.
Background history
Background facts are found in his Honour’s substantive judgment and are not controversial.
The parties met in 1992 and commenced a sexual relationship in 1993 which lasted for approximately 18 months.
In July 2002 the parties renewed their relationship, and in May 2005, renewed their sexual relationship.
In July 2005 the mother became pregnant and the parties became engaged and planned a wedding for October 2005.
On 29 July 2005 the father terminated the engagement.
In March 2006 the child was born.
Proceedings were commenced by the father in this Court on 21 June 2006. Thereafter various interim orders were made, including an order by consent, for the father to spend limited time with the child at the mother’s residence, and for a psychiatric report to be prepared in relation to the father’s mental health.
On 9 November 2006 Dr Rikard-Bell “made an assessment of the father.” Dr Rikard-Bell was appointed by the father.
On 9 November 2006 Dr Allnutt, a psychiatrist appointed by the mother, provided a report on the father.
On 5 October 2007 the Court appointed expert Associate Professor Quadrio (“Dr Quadrio”) provided an expert report.
On 14 July 2008 Dr Quadrio provided a supplementary updating report.
The father provided a history to each of the psychiatrists of mild-moderate depression for which he was treated primarily with the drug, Effexor.
At the date of the hearing the father was employed on a full time basis in the transport industry. The mother had married, was engaged in part time employment, and the child was cared for three days per week by her maternal grandmother.
The trial judge’s reasons
His Honour delivered his reasons in respect of the stay application on 3 September 2008. At the commencement of his reasons his Honour set out the orders he had made on 12 August 2008 and noted that the mother had sought a stay of Orders 6, 7, 8, 9 and 20 pending the determination of the Notice of Appeal. His Honour explained that the mother relied on two affidavits in support of her application, and that it had been brought to his attention that the mother had filed an application seeking expedition of her appeal. He also noted the mother relied on an affidavit of the mother’s solicitor attaching a medical certificate from the mother’s obstetrician/gynaecologist certifying that she had been confined to bed for a period of three days commencing on 17 August 2008 having suffered a miscarriage.
His Honour went on to explain that the mother’s counsel conceded the mother would accept a stay on terms that his Honour’s orders be implemented, but subject to those orders being supervised.
His Honour then recorded he had been informed by counsel for the mother that if the appeal was expedited it would be likely to be heard in the first half of next year but “tentatively suggested it may be before the end of this year” (paragraph 7). His Honour also recorded the matter had previously been listed before him for a stay of his orders pending the hearing of the mother’s application for a stay and said “[t]he effect of that stay would have been to deny to the child the opportunity of spending time with the father unsupervised overnight for one night” (paragraph 9).
Having noted matters relevant to the earlier stay, which his Honour had refused, he recorded that he was informed that “notwithstanding that refusal the mother withheld the child from the father on that night” (paragraph 12) and explained that “notwithstanding that clear and admitted breach of the Order” (paragraph 13) he continued to hear the application.
His Honour then turned to consider the submissions made by counsel on behalf of the mother. He noted that the mother’s counsel submitted the appeal was not a delaying tactic, and it had been prosecuted diligently. His Honour accepted that the appeal was not a delaying tactic. His Honour explained the basis of the orders sought was the mother’s concern that the time to be spent with the child by the father would be without supervision and expressed the view that “the mother’s concerns are very limited in scope” (paragraph 16).
His Honour then went on to explain that in the substantive proceedings the mother had sought the time spent by the child with the father should be supervised on the basis that the father had “some unspecified mental disorder or disease” (paragraph 16).
His Honour also noted that the mother sought, in the event that her appeal was successful, there be further investigation by the Court appointed expert, Dr Quadrio.
His Honour then went on, at paragraph 17, to refer to the evidence before him at the trial:
The evidence before me on hearing was clear that the father had been investigated by three psychiatrists and none of them, including Dr Quadrio, thought that there was any basis for not granting to him the orders that he sought.
His Honour noted the father had suffered from depression, had been treated for it, and there was no evidence he was currently suffering from depression. His Honour recorded that the father had a close and loving relationship with the child and that he was “a responsible employee of an international [transport] company […]” (paragraph 19).
Referring to the father’s supervised time spent with the child, his Honour noted there had been no complaint from those who supervised those periods, including the supervisors at the child’s day care facility.
His Honour then referred to the decision in Clemett and Clemett (1981) FLC 91-013 and considered the discussion in that case of the desirability of limiting the frequency of changes in custodial arrangements, but noted in this case, the child had a close bond with the father, and the evidence was that the arrangements sought by the father were age appropriate.
Significantly his Honour said:
The evidence was that there was nothing which would indicate that unsupervised time would operate to the child’s detriment or incur a risk likely to be detrimental to the child. (paragraph 23)
His Honour then explained that the expert witnesses, other than Dr Quadrio, were not cross-examined on behalf of the mother, and that the cross-examination of Dr Quadrio was limited. His Honour then noted the argument advanced by counsel for the mother that, even if he came to the view that there was no risk to the child from the father, he should have regard to the effect on the child of the mother’s stress at the father having unsupervised time with the child.
His Honour reiterated the view expressed in his substantive judgment there was no risk to the child from the father having unsupervised contact with her and concluded:
[t]he inescapable conclusion from the evidence was there was no basis upon which the continuation of the supervision order could be justified, and accordingly I do not believe the appeal on that basis has merit. (paragraph 26)
Having recorded that he had determined positively it was in the child’s best interests for her to spend time on an unsupervised basis with the father, his Honour went on to discuss the lack of evidence before him that the mother’s concern was reasonable or rationally based. His Honour concluded he preferred the submissions advanced by the counsel for the father and the independent children’s lawyer that the child “cannot be held hostage” to an assertion (of the mother’s vulnerability) when there was no evidence or factual basis to support her concerns (paragraph 29).
His Honour proceeded to note that the certificate from the mother’s gynaecologist did not link her current condition to any matter relevant to this case. His Honour affirmed that he found the child’s best interests had not been served by the situation up to the date of the hearing, and that had resulted in orders requiring changes.
His Honour then referred to submissions made by the mother’s counsel to the effect that if a conditional stay was granted no harm would occur to the child. His Honour explained that he had come to the conclusion his orders were appropriate for the proper development of the child’s relationship with the father and should be implemented.
His Honour then recorded he had been referred to a number of authorities, including K and B (2006) FLC 93-288, and quoted from paragraphs 21 and 22 of that judgment.
His Honour then referred to the decision of EJK and TSL (2006) FLC 93-287 noting that case dealt with an application to permanently stay parenting proceedings in a case involving forum non conveniens issues.
His Honour then repeated his earlier findings that his orders were in the best interests of the child, and again noted the mother’s concession that it was not the fact of overnight time about which she was concerned, but rather the question of supervision.
His Honour concluded, at paragraph 44, “[n]othing in the authorities or the evidence leads me to the conclusion that this is not a proper matter for the stay to be refused and I order accordingly”.
In conclusion his Honour noted that no submissions had been addressed to him on behalf of the mother in respect of the stay sought in respect of Order 20. This order was directed to ensuring the child was normally treated for any medical or like matter by a non-family member, it not being in dispute that the maternal grandmother is a medical practitioner. His Honour said that no argument was put to him on that issue.
Grounds of Appeal
The grounds of appeal as set out in the Notice of Appeal filed 5 September 2008 are as follows:
1.That the trial judge erred in refusing to grant a stay of the operation of orders not requiring supervision in circumstances where the child is aged 2 1/2 years, and at the time of trial had not spent any time unsupervised with the father, and had not spent any period overnight away from her mother or maternal grandmother.
2.That the trial judge erred in failing to find that the child’s arrangements if the stay were granted would be “satisfactory” as referred to in the authorities.
3.That the trial judge erred in not appropriately considering the proposed application for expedition of the appeal which, if successful, would indicate that the period required for the stay be relatively short.
4.That the trial judge failed to properly take into account authorities such as Sampson and Hartnett [2007] Fam CA 732, to which his Honour was taken, wherein an expedited appeal in a children’s matter was heard within weeks of the stay application being dealt with.
5.That the trial judge erred in failing to properly take into the [sic] account the conditions proposed by the Appellant, namely that the child spend time with the father as ordered by his Honour, but on a supervised basis, that an application for expedition of the appeal be prosecuted with diligence, and that the Appellant be prepared to prosecute the appeal anywhere in Australia and as otherwise ordered by the Court.
6.That the trial judge erred in failing to give adequate reasons for refusing the stay in circumstances where under the proposal of the Appellant, the child would see her father as ordered by his Honour in the company of the father’s relatives. Most likely the paternal grandmother who lives in the same house.
7.That the trial judge erred in misdirecting himself as he did in respect of the strength of the Appellant's Grounds of Appeal. In paragraph 26 of the Judgment, his Honour found that, “I do not believe the appeal on the basis has merit.”, referring to “risk to the child”.
8.That the trial judge erred in placing excessive weight on the need for a third party (here, the child) to take the “benefit of the judgment”.
Applicable principles to determine this stay appeal
This is an appeal from a discretionary judgment. The limits on interference by an appellate court with such a judgment are well established in the authorities (see House v King (1936) 55 CLR 499; Gronow v Gronow (1979)144 CLR 513; (1979) FLC 90-716.)
The principles to be applied in determining an application for a stay of orders are also well known. In EJK & TSL (No 4) [2006] FamCA 1022 the Full Court, on hearing a second stay appeal in the same matter, referred to the relevant principles to be applied in determining such an application. Their Honours said:
16.As in the first stay appeal, neither party put in issue the correct principles as set out in the authorities to be applied in respect of a stay. The relevant authorities and the applicable principles and arguments of counsel in respect of those authorities were clearly identified by the trial Judge in his reasons delivered on 2 October 2006 including the decision of the High Court in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; De Lewinski v Director-General New South Wales Department of Community Services and Anor (1996) 70 ALJR 532; (1996) FLC 92-678; Clemett and Clemett (1981) FLC 91-013; Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 and Sanders and Sanders (1976) FLC 90-078.
17.We consider it is helpful to our discussion (as did the Full Court in the first stay appeal) to repeat the relevant principles applicable to a stay in a parenting case as discussed in Clemett (supra). 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 the earlier stay application (EJK & TSL (No. 2) (2006) 35 Fam LR 590) the Full Court explained that the decision in Clemett pre-dated the Family Law Reform Act 1995 (Cth) and noted the following at paragraph 17 of their reasons:
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 Act1975 (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.’
We consider the principles discussed above remain apposite after the introduction of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) where a stay is sought in respect of parenting orders made under Part VII of the Act.
The parties’ submissions
This appeal was listed at very short notice. Notwithstanding the time constraints we were assisted by comprehensive written submissions by counsel for each party. The independent children’s lawyer did not participate in the stay appeal. On the hearing of the stay before the trial Judge the independent children’s lawyer indicated his support for the submissions made on behalf of the father in seeking dismissal of the stay application. We did not have the benefit of transcript of the stay application before the trial Judge, but it was not asserted by counsel for the mother that it was necessary we do so.
In summary counsel for the mother submitted that:
·the practical effect of refusing the stay had rendered the mother’s appeal nugatory;
·the trial Judge accepted the appeal was brought bona fide, and was not a mere delaying tactic;
·the appeal was being prosecuted with expedition; and
·the arrangements proposed by the mother would allow satisfactory, if not optimal arrangements, to be put in place pending the hearing of the appeal.
Counsel for the mother submitted, among other matters, the following facts were relevant:
(a)the mother at trial had sought orders for the father who had suffered depressive illness to undertake one year’s evaluation by a psychiatrist;
(b)that the father was continuing to attend a psychologist;
(c)that the trial Judge at the trial erred in applying s 135 of the Evidence Act 1995 (Cth) (“the Evidence Act”) to refuse to admit the father’s treating psychologist’s clinical notes; and
(d)that the father’s treating psychologist’s notes, if accepted, supported an assertion that the father had “not been forthright” with the three expert psychiatrists whose evidence was before the trial Judge.
He further submitted that it was relevant at the stay hearing the mother had conceded that his Honour’s orders should come into operation as to the time the father should spend with the child, but subject to the qualification that time be supervised pending the hearing of the appeal.
By contrast, counsel for the father in his written submissions pointed out that the mother had defied, at least on one occasion, his Honour’s orders, and that the concerns raised by the mother on the stay application were the same concerns as were raised at the trial. He submitted “[t]he father’s mental health is no longer in question” (submissions, paragraph 12, p 3) noting the trial Judge had accepted the evidence of the Court appointed expert, Dr Quadrio. Counsel referred to paragraph 68 of the trial Judge’s reasons. In this paragraph the trial Judge quoted the submission of the independent children’s lawyer which was to the following effect “[t]he Court can accept the conclusions of each of the Psychiatrists privately retained and Dr Quadrio where they are not substantially challenged before this Court by the legal representative of the mother”, which submission his Honour accepted.
Counsel for the father also noted that although the mother sought to impugn the father’s honesty, the trial Judge, who we note had the advantage of observing the parties in the witness box, made credit findings favourable to the father and adverse to the mother.
Discussion
In oral argument before us, counsel for the mother sought to rely on a number of cases involving stay appeals, and submitted those cases demonstrate that if the present circumstances of the child are satisfactory, the Court should not generally disturb that arrangement pending the hearing of an appeal.
We raised with counsel for the mother the practical effect of the stay sought, it being conceded that his Honour’s orders should be implemented, but subject to supervision. Counsel for the mother agreed that there was no unacceptable risk of harm to the child in the sense described in cases such as M v M (1988) 166 CLR 69; (1988) FLC 91-979, but when further pressed to identify the risk he did rely upon conceded the risk was speculative, and he could not on the evidence identify any particular risk. The following exchange, which demonstrates the lack of basis for supervision, is illuminating:
BRYANT CJ: But a risk of what? Certainly can’t quantify it.
MR GOULD: Oh that the behaviour of the father may present a risk to the child if there is not a relative of his present.
BRYANT CJ: But I know you keep saying that…
MR GOULD: The mother is not able to…
BRYANT CJ: …but what? I’d want to get some impression of what kind of risk we’re talking about. What is the harm that it is said might occur if the father has unsupervised contact?
MR GOULD: The mother can’t know, your Honour. … There is evidence that she suggested a personality disorder, Professor Quadrio looked at that prospect and said that as presently advised, that is if the father’s history was accurate, she didn’t think so.
BRYANT CJ: But even if there was, what risk would that pose?
MR GOULD: … the mother is not able to take you to any evidence, your Honour, about past behaviour, for example, beyond the practical things, for example it was observed the evidence reveals that the child was allowed out on a balcony.
BRYANT CJ: On a balcony.
MR GOULD: Yes … and more recently that the mother’s home where some contact was to happen was not child-proofed, as it were … Mr Watkins would tell you that has been remedied, but apart from practical things of that sort, the evidence doesn’t reveal what the nature, the exact nature of the risk to the child might be.
It initially appeared to us in dealing with this stay application three predominant matters required examination. First – did his Honour adequately consider the effect of refusal of the stay having the practical effect of rendering the mother’s appeal rights nugatory? Secondly – did his Honour give sufficient weight to the possible merits of the grounds of appeal in respect of the substantive appeal, particularly the ground directed to asserted error in his rejection of the father’s treating psychologist’s notes? Thirdly – did his Honour give appropriate weight to the mother’s concession on the stay application that the orders should be implemented but subject to the condition of supervision by a member of the father’s family pending the hearing and determination of the appeal? As will become apparent from our discussion below, at the hearing of the appeal, the third issue we considered relevant became the determinative issue in the appeal.
In K and B the Full Court discussed, in dealing with a stay application concerning a child, whether it was necessary and appropriate to always maintain the status quo pending an appeal to avoid disruption to a child. There the Full Court explained the determination involved an exercise of discretion, and distinguished a satisfactory status quo from one which was not in the child’s best interests. Their Honours said at paragraph 32:
The interests of children would not be promoted by an inflexible requirement or presumption in every case to maintain the status quo prior to the making of orders the subject of the stay application, and to ignore unsatisfactory arrangements at the time of the orders, or significant events which have occurred after the making of those orders.
Although counsel for the mother submitted that the arrangement proposed by the mother may not be the optimal one in the best interests of the child, he submitted it was a satisfactory arrangement pending the determination of the appeal.
In reaching our determination to dismiss the appeal we considered as the significant and predominant matter, the concession, very properly and appropriately made by the mother’s counsel, that the mother was unable to identify any evidence of risk to the child involved in unsupervised time spent with the father. That concession demonstrated to us that the exercise of discretion by the trial Judge to implement immediately a regime by which the child is able to progress, in an age appropriate way, her relationship with her father, and have the benefit of a meaningful relationship with him, did not constitute appealable error.
In light of our determination that there was no appealable error by his Honour in refusing to stay his orders as a basis for supervision could not be justified on the mother’s own case, it is not necessary we consider in any detailed way the remaining issues raised in counsel for the mother’s written submissions.
We are somewhat hampered in our discussion of the remaining issues because, as we have already noted, we did not have the benefit of the transcript before his Honour on the stay application. We note that the mother’s appeal has been expedited, and that although his Honour did not specifically in his reasons deal with the issue of the mother’s appeal being rendered nugatory or impractical, that consideration was of little import when examining, as his Honour did, the predominant issue agitated on behalf of the mother before him to support the stay, namely that unsupervised time with the father would pose a risk to the child.
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. However, his Honour did note that the father had been examined by three experts, and no expert “thought there was any basis for not granting him the orders sought”. We also record that in our view, his Honour had, in the substantive judgment, dealt comprehensively and cogently at paragraphs 42 to 50 (and again at paragraphs 80 and 81) of his reasons as to why pursuant to s 135 of the Evidence Act he rejected the admission of the father’s treating psychologist’s notes.
Counsel for the mother asserted that an appeal against Order 20 of his Honour’s orders must succeed and that Order should be stayed. He asserted that Order 20 of his Honour’s orders was not supported by any evidence before the trial Judge.
The focus of both the oral and written submissions before us was on the question of whether the child’s time with the father should be supervised pending the appeal, and we did not have the benefit of any real argument in respect of Order 20 of the trial Judge’s substantive orders. Order 20 provides as follows:
The mother is to retain a non-family member as the Child’s treating doctor or other medical practitioner or provider and provide information to the father of the address and contact telephone numbers of such health care provider such that the father can contact any such provider when needed and discuss the Child’s medical needs at any time. Nothing in this order shall prevent or prohibit the mother from consulting a medically qualified family member concerning the child’s health in the event of a medical emergency.
An order in similar terms was sought by the father at trial (see substantive judgment paragraph 61). Counsel for the father referred to the lack of communication with the father about the child’s medical treatment because of an asserted poor relationship with the maternal grandmother who is a medical practitioner. It was impossible for us at the hearing of the stay appeal given the constraints of the material before us, to assess the possible merits of this ground of appeal. We do note however that his Honour touched on the issue of the child’s medical care in paragraph 110 of his reasons in the substantive judgment.
During the hearing it was pointed out to us that Order 20 does not preclude appropriately qualified members of the mother’s family providing emergency medical treatment for the child. In these circumstances we see no prejudice to the mother or appealable error by his Honour in refusing to stay this order. On this basis we determined we would not uphold the appeal in part limited to Order 20. The mother can, if she wishes to do so, argue the asserted error in making this order on the hearing of the appeal.
Costs of the appeal
As we have earlier in these reasons explained, this matter was listed before us at very short notice, and understandably the focus of counsel was on the substantive issues in the appeal, and not issues relative to costs. We determined in these circumstances it would be appropriate to stand over the question of costs to the Full Court hearing the substantive appeal, and in the event that appeal did not proceed for any reason, that the issue of costs of the stay appeal could be listed at a convenient time before a Full Court for determination.
I certify that the preceding sixty nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 12 September 2008
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