Burton and Churchin and Anor (No. 2)

[2013] FamCA 741

FAMILY COURT OF AUSTRALIA

BURTON & CHURCHIN AND  ANOR (NO. 2) [2013] FamCA 741

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of orders pending appeal.

Family Law Act 1975 (Cth) – s 117(1), s 117(2A)
Family Law Rules 2004 (Cth) – Rule 22.11

Aldridge & Keaton (2009) FLC 93-421
Cape & Cape [2013] FamCAFC 114
Clemett & Clemett (1981) FLC 91-013
House v The King (1936) 55 CLR 499
Trahn & Long (No. 2) (2008) FamCAFC 194

APPLICANT: Ms Burton

1st RESPONDENT: Ms Churchin

2nd RESPONDENT: Ms Myers

INDEPENDENT CHILDREN’S LAWYER: Hamish Cumming Family Lawyers

FILE NUMBER: SYC 3338 of 2011

DATE DELIVERED: 29 August 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 29 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sansom

SOLICITOR FOR THE APPLICANT: Abrams Turner Whelan Family Lawyers

COUNSEL FOR THE 1^ST RESPONDENT: Ms Ward

SOLICITOR FOR THE 1^ST RESPONDENT: Delaney Lawyers

FOR THE 2^ND RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Boyle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Hamish Cumming Family Lawyers

Orders

1. That the orders made on 16 August 2013 are stayed pending determination of the Appeal.

2. That the Court notes the written undertaking to the Court by Ms Burton signed by her and her counsel and filed in Court today as set out hereunder:-

   The Applicant, [Ms Burton], undertakes to the Court to pay such fees as are required by [Z School] to maintain the enrolment of [the child C] at that school, pending further order (as to the outcome of any appeal).

3. That the costs application by the step-mother is dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3338 of 2011

Ms Burton

Applicant

And

Ms Churchin

1^st Respondent

And

Ms Myers

2^nd Respondent

REASONS FOR JUDGMENT

1. This is an application for a stay of substantive parenting orders made by me on 16 August 2013 in relation to the child C Churchin born in 2003. 

2. Ms Burton, to whom for convenience I shall refer as “the stepmother”, sought an order that the said orders be stayed pending determination of her appeal against the orders.  The application for a stay is opposed by Ms Churchin, to whom for convenience I shall refer as “the aunt”.  Ms Boyle represents the independent child lawyer in the proceedings.  Ms Myers, to whom for convenience I shall refer as “the mother”, did not participate in the substantive hearing and has not participated in these stay proceedings.  The substantive proceedings were heard over five days between late January and early March 2013. 

3. The orders of 16 August 2013 provide, in effect, that the aunt have sole parental responsibility for the child, that the child live with her and that she be permitted to relocate the child's residence to France.  There were also detailed orders made for the child to spend time with her sister D Burton and the stepmother both in France and Australia.

4. The principles relevant to determination of the stay application in relation to orders concerning a child have been referred to in numerous authorities of this Court, some of which have been referred to by counsel for each of the parties.  Mr Sansom for the stepmother referred to the well-known case of Clemett & Clemett (1981) FLC 91-013 and also the Full Court decision in Aldridge & Keaton (2009) FLC 93-421. Ms Ward also referred to these principles as having been affirmed by the Full Court of this Court in the case of Trahn & Long (No. 2) (2008) FamCAFC 194.

5. Those relevant principles were again affirmed by the Full Court of this Court in Cape & Cape [2013] FamCAFC 114. They are as follows:

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

   ·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;

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

   ·the bona fides of the applicant;

   ·a stay may be granted on terms that are fair to all parties which 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;

   ·some preliminary assessment of the strength of the proposed appeal, that is, 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.

6. Both the aunt and the independent child lawyer oppose the granting of the stay.  It was submitted on behalf of the aunt that in relation to the desirability about limiting the frequency of changes for the child there is no principle to the effect that the status quo need be inflexibly maintained.  I accept that submission.

7. It was submitted that this case is somewhat different from some cases in respect of which courts have considered stay applications in that the stay application follows a final contested hearing which continued over five days, with full opportunity being given to each of the parties to present their respective cases.  It was submitted that the Court's decision was entirely consistent with the expert evidence before the Court and that it was also supported, at least in its fundamental parts, by the independent child lawyer.  It was submitted that ultimately the Court arrived at the judgment that the child's best interests would be served by living with her extended family in France and that the Court found that the merits of the respective applications were not finely balanced but fell clearly in favour of the child living with her aunt in France.

8. It was submitted that the aunt acted quickly to have the court orders translated into the French language so that they could be used in France to facilitate the child being settled into school and to promote her best interests.  It was submitted that the aunt has showed appropriate parental responsibility in arranging, as a matter of priority, the child's enrolment in an appropriate school in France.  The aunt regards that matter as having priority over whatever arrangements had been made for the child by her stepmother in terms of a birthday celebration and also her proposed attendance at a concert of a particular popular group which apparently the child is very much a fan of.

9. It was submitted that permitting the aunt to have the benefit of the fruits of the Court's judgment would not render the appeal nugatory.  It was submitted that it would not be necessary for the child to return to Australia for the appeal. 

10. In terms of the strength of appeal, it was submitted that this is an appeal from a discretionary judgment and that there would be difficulties because of the well-known principles set out in House v The King (1936) 55 CLR 499 and similar authorities. It was submitted that even a cursory observation of the notice of appeal shows some internal inconsistencies with the grounds and that there would be a need for some amendment of the notice of appeal to remove some inconsistency, perhaps, duplication and some other matters which would appear to be in error therein.

11. It was submitted that while the aunt accepts that the Court is able to offer an early date for ventilation of the appeal and that it could be heard within a month or so, there could be no guarantee of an early judgment forthcoming and in those circumstances, if the child was retained in Australia on the basis of a stay, that retention could go on for many months.

12. It was submitted that the Court could be confident that the aunt would return the child to Australia and in this regard the Court made some observations and findings about that in the judgment.  It was submitted that the aunt has an established track record of returning the child to Australia after she has been in France enjoying visits with her relatives there and that the situation would be no different in respect of the Court making orders which would enable the child to move quickly to France.

13. It was submitted that an additional incentive in relation to returning the child is the fact that the aunt has been keen to maintain her links with Australia and, particularly, because she is anxious to restore her relationship with the child D.  It was submitted that, if necessary, the aunt would be prepared to do whatever would be required to have the Court's orders registered in an appropriate court in France pursuant to the scheme in the Child Protection Convention which is concerned with international recognition and enforcement of parenting orders as referred to in the decision of Cape & Cape (above).

14. So far as the child's best interests are concerned, it was submitted that France is well-known to the child, she having visited France and spent time in France fairly regularly over almost the entirety of her life.  It was submitted that her bedroom is known to her there and that her extended French family is well-known to her.  She would be moving to a new school.  But she would be doing that in circumstances where she would be moving from a very secure and loving family base constituted by her aunt and extended family with whom she is entirely familiar. 

15. It was submitted that the child’s best interests require her to move now so that she would be living in a home that would best encourage her relationship with both sides of the family in accordance with the Court's findings.  She would be moving to live with a family which offers the depth of parenting style and the resources referred to not only by Dr K, but as ultimately found by the Court would best assist the child to cope with those difficulties which were referred to by Dr K and about which I made some observations in the judgment.

16. It was submitted that the longer the delay and the closer that the child gets to adolescence the greater the difficulty for her in settling into her life in France.  It was submitted that to keep her in Australia would be contrary to the expert evidence and contrary to the Court's conclusions and contrary to the child's best interests. 

17. Learned counsel for the independent child lawyer joined in supporting the submissions on behalf of the aunt.  Ms Boyle referred to the capacity in the paternal family and the depth of parenting resources in that family.  She supported refusal of the stay on the basis that the best interests of the child required that she be able to move to France without delay and settle down with her French family in her life in France.

18. It was submitted that clearly there is a place at the International … School in France available for the child and the aunt has undertaken the appropriate administrative tasks involved for the child’s enrolment there.  It was submitted in relation to a suggestion that if the child was to go to France and subsequently be required to return to Australia there might no longer be a place available to the child at her current school, there was no evidence to that effect.  I must say that is not a matter about which I am persuaded at all.  It seems to me that in circumstances where this school appears to have bent over backwards to accommodate the needs of the child and where the school is well aware of this ongoing litigation it would be hardly likely that the school would be unable to offer a place for the child in the event of her return.

19. Learned counsel for the independent child lawyer also expressed a concern about possible delay in the Full Court being able to deliver judgment in the appeal.  It was submitted that the appeal is an appeal against a discretionary judgment and that no appeal is made on the basis of some asserted error of law.

20. It is unnecessary for me to refer in detail to the submissions by learned counsel for the stepmother in support of the stay.  Learned counsel took me through the principles referred to in the well-known authorities.  It was submitted that a person who has obtained a judgment is entitled to the benefit of that judgment, but that has to be weighed with all the other factors and ultimately with the best interests of the child.

21. My view about the stay application is that while the Court would have some reluctance towards granting a stay, the Court is also alive to the fact that a Full Court will be available in something like four or five weeks time to hear the appeal.  True it is that there might be some delay involved in a judgment.  But on the other hand, it might also be the case that a judgment might be produced quickly.  It is the case that the aunt is entitled to the fruits of the Court's judgment.  But that has to be balanced against all the other relevant matters and, particularly, the best interests of the child.  There is no question, in my view, about the bona fides of the stepmother.

22. So far as any risk that an appeal may be rendered nugatory if a stay is not granted, I cannot think of a circumstance that would cause the appeal to be rendered nugatory.  There was a submission made by learned counsel for the stepmother that if the child was to go to France and become enrolled in school the Full Court might not be prepared to unsettle her.  I do not accept that that would be the situation and I am certainly unpersuaded by that submission.

23. So far as some preliminary assessment of the strength of the proposed appeal is concerned I cannot take the matter further than has been submitted on behalf of the aunt and by the learned independent child lawyer's counsel.  As they have said, it is an appeal against a discretionary judgment.  One could not say that the stepmother does not have some arguable case.  I take on board the submission by Ms Boyle that there is no suggestion of any error of law.  I also take on board the submissions about the difficulties facing the appellant in succeeding in an appeal against a discretionary judgment. 

24. The next matter is the desirability of limiting the frequency of any change in the child's living arrangements.  This is really the gravamen of the case in favour of granting the stay.  If the stay is not granted, there is a possibility that the Full Court might find error, might substitute its own discretion or might remit the matter for re-hearing.  In such a case, if the child had settled down in France and then had to be repatriated to Australia, that would clearly not be something which would be in her best interests.  That must particularly be the case in circumstances where it was clear on the basis of Dr K's evidence that there was likely to be some degree of distress and upset to the child in leaving her living circumstances in Australia.  The unknown quantity in all of that is just what the extent of that might be.  But I do not think anybody has suggested, and it certainly was not my finding, that it was likely that there would be no distress or disruption at all to the child.

25. The next matter is the period of time in which the appeal can be heard.  As I have said, I am confident the appeal can be listed for hearing within weeks.  In all the circumstances, given what I think will be an expeditious approach by the Full Court, to hearing the appeal I am not persuaded that the child ought to be put through what she will almost certainly be put through in leaving her current home in Australia to move to France.  So in all the circumstances, in my view, the appropriate order to make is to grant the stay. 

26. However, having arrived at this point, I repeat my concern about the fact that the school fees have not been paid.  I would need to build into an appropriate order a condition to the effect that the stepmother be able to satisfy the Court that the child would be able to remain at school without the risk of expulsion hanging over her head due to non-payment of school fees.

27. The stepmother also sought her costs in the stay proceedings. The usual position is as set out in s 117(1) of the Family Law Act 1975 (“the Act”) namely, that each party to proceedings under the Act shall pay his or her own costs. That is subject to a discretion given to the court to make a costs order where the Court considers it just to do so upon consideration of the relevant matters in s 117(2A).

28. The first matter in support of the application is that the applicant earns $137 000 per annum, that she owns no property, that she has been looking after the two girls, namely, the child and her elder half-sister D since 2011 without any support.  Clearly, both parties in the proceedings must have sustained considerable costs in these proceedings. 

29. The major matter which it is submitted the Court would take into account and really the foundation for any exercise of discretion would be that the respondent and also the independent child lawyer have been wholly unsuccessful in the proceedings.

30. In my view, the outcome of this stay application was not clear. It involved consideration of all the factors that were referred to in the submissions and during the course of my brief reasons. It also involved some uncertainty about whether a Full Court will be able to be assembled expeditiously to hear the appeal. In all the circumstances, I am not persuaded that this is a matter where the Court would depart from the usual position set out in s 117(1).

I certify that the preceding thirty (30) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 29 August 2013.

Associate:     

Date:              30 September 2013