Cameron and Walker

[2010] FamCA 93

FAMILY COURT OF AUSTRALIA

CAMERON & WALKER [2010] FamCA 93

FAMILY LAW – STAY PENDING APPEAL – Not established that application on behalf of the mother for unconditional stay should be granted – Refusal of stay not against children’s best interests or likely to render success on appeal nugatory

Clemett and Clemett (1981) FLC 91-013
House v The King [1936] HCA 40; (1936) 55 CLR 499 (17 August 1936)

APPLICANT: Ms Cameron

RESPONDENT: Mr Walker

FILE NUMBER: PAF 2031 of 2005

DATE DELIVERED: 11 January 2010

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Coleman J

HEARING DATE: 11 January 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sansom

SOLICITOR FOR THE APPLICANT:

THE RESPONDENT: In Person

Orders

1. That the stay application of the mother, filed 22 December 2009 is stood over to a date to be arranged subsequent to 15 June 2010 before a judge.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAF 2031 of 2005

MS CAMERON

Applicant

And

MR WALKER

Respondent

REASONS FOR JUDGMENT

1. On the 15 December 2009, Waddy J delivered judgment in parenting proceedings between the parties. Those orders were made after a lengthy trial, during which the mother was represented by learned counsel and the father represented himself. The effect of the trial Judge’s, or what can for present purposes adequately be described as the effect of the trial Judge’s orders, was that the child, T, born in January 2005, continue to live with her mother but, as from 1 January 2010, spend time with her father on an unsupervised basis, contact having for some time prior thereto occurred on a supervised basis. The mother filed her original Notice of Appeal within the time provided and in the absence of the trial Judge’s Reasons for Judgment, which were delivered ex tempore on 15 December 2009.

2. The matter came before the Court on 24 December 2009, at which time learned counsel for the mother, with respect, sensibly in this Court’s view, opted to adjourn the application to stay the trial Judge’s orders until today, so as to have some opportunity to consider the trial Judge’s reasons in printed form. As is not in doubt, the learned Waddy J retired, his commission expiring at midnight on 23 December 2009. In the interests of a more just resolution of this stay application, on 24 December 2009, the Court having obtained Waddy J’s approval to doing so, an order was made to facilitate the receipt by both parties of his Honour’s unedited Reasons for Judgment, which run to some 203 paragraphs, covering 75 pages. Those Reasons for Judgment in unedited form have been available to the parties, and the Court has read them.

3. The effect of the order sought by the mother is to stay the orders made by Waddy J, insofar as they provide for the father having unsupervised time with the child T.

4. It was fairly conceded by learned Counsel for the mother that, to the extent that there was any doubt about the matter, or could be any doubt about the matter, that if the stay were granted in the terms sought, the previous orders for supervised contact would revive. As is not in doubt, the filing of a Notice of Appeal does not operate to stay the orders of a trial Judge. The granting of a stay is discretionary, and the principles governing such applications are not in doubt. Overarching the particular considerations, as the authorities make clear, is the welfare of the child the subject of the orders.

5. In no particular order of significance, but adopting the sequence in which learned counsel for the mother agitated the stay application, the Court addresses the particular factors which have been referred to in support of the stay application. It was sensibly conceded that, although not an onus in the strict sense, the mother in this case does bear the burden of establishing that the father should be denied the fruits of the success which the trial Judge’s orders afforded him.

6. It is not in doubt and the Court accepts, to the extent that there is any doubt about it, and there may not be any, that the mother’s appeal is bona fide. The mother filed her Notice of Appeal expeditiously.

7. The mother moved the Court expeditiously for a stay of the trial Judge’s orders. She expeditiously filed an Amended Notice of Appeal, the Court being advised by learned counsel for the mother that such notice was filed in the Appeals Registry last Friday. The mother filed an application to expedite the hearing of her appeal. No return date for that application is currently known. The appeal is, on the material before this Court, clearly bona fide. The stay application is also bona fide, and not merely on any material which is before this Court, designed to delay or otherwise frustrate the trial judge’s orders. Were it otherwise, the Court would have little hesitation in dismissing the stay application.

8. It was conceded by counsel for the mother, accurately so in the Court’s view, that a material consideration is whether the appeal would be rendered nugatory if the stay were to be refused. That must be looked at in the light of the orders which the mother seeks, the grounds upon which the mother sought that such orders be made at trial, the pendency of the mother’s appeal and the nature of the orders which the trial Judge made. Relevant in this context is the probability that the mother’s appeal would be heard in April of this year unless she withdrew her expedition application. Whilst nothing is certain, it is probable that an appeal heard then would be disposed of by the Full Court by the end of June of this year.

9. If the current orders are not stayed then the provisions of Order 5.4, which provide for single day unsupervised contact of the kind which the evidence suggests occurred this weekend just passed, would operate. Prior to the commencement of weekend contact, pursuant to Order 5.5 of the trial Judge’s orders, it is probable that either the appeal would have been determined or that, whether by the Full Court or by reference to a single judge, if the appeal had not been disposed of by that time, the Court could stay the commencement of the provisions of Order 5.5 until the determination of the appeal.

10. In this Court’s view, that is a significant matter in terms of whether or not success on appeal would be rendered nugatory, particularly having regard to what the trial Judge recorded as being the mother’s concerns and the basis of them. In so saying, the Court is not expressing any views as to the likely success or otherwise of challenges raised by the mother, or intended to be agitated by her in the appeal. On that basis, it is difficult to see how it could be suggested that the fruits of a successful appeal by the mother would be rendered nugatory if a stay until 30 June, at least until 30 June this year, was to be refused. The limiting of change in arrangements for children is a significant factor, in this context, as learned counsel for the mother has submitted.

11. Clearly, if the orders to proceed to unsupervised weekend contact of the kind provided for by Order 5.5, there may be other consequences, by introducing significant changes only for those changes to be subject of further change if the appeal succeeded. In this Court’s view, the same cannot be successfully suggested with respect to Order 5.4, the effect of which is that on a daily contact basis, the requirement of supervision at a contact centre is removed. No finding made by the trial Judge, or urged upon him on behalf of the mother militates against so concluding.

12. The possible merits of appeal are a matter to which the Court must have regard. Learned counsel for the mother submitted that his client has an “arguable appeal”. The Court accepts that such is the case. That must of course be looked at in the context of the authorities which govern all appeals against discretionary judgments, commencing with the decision of the High Court in House v The King [1936] HCA 40; (1936) 55 CLR 499 (17 August 1936), a judgment from which the High Court has never departed. Particularly in some of the judgments of Kirby J, the Court has explained and emphasised the principles there stated in the years which have followed House v The King. Also relevant, having regard to the Amended Notice of Appeal are the authorities in relation to challenges to credit findings and the very substantial hurdles which the High Court has confirmed exist in those circumstances.

13. The Amended Notice of Appeal necessarily seeks to engage with the trial Judge’s credit findings, particularly in the context of the findings with respect to the mother, as they appear in Ground 2. Ground 3 appears to be a derivative of Ground 2 and necessarily substantially likely to be successful or unsuccessful, depending upon the fate of Ground 2. Similar observations apply to Ground 5. Some of the challenges embodied in Grounds 2 and 5 raise complaints with respect to the adequacy of the trial Judge’s reasons, as does Ground 1 in a somewhat different context. It is clear that a point of major significance in the appeal relates to the circumstances surrounding the cross-examination of the mother.

14. In his Reasons for Judgment (at paragraph 24), the trial Judge gave an indication of why he may have refused the mother’s counsel’s request that she be “remotely cross-examined” and at least implies that the refusal to grant that application was vindicated by the subsequent course of the mother’s cross-examination. The adequacy or otherwise of the trial Judge’s reasons in that regard will be a matter which engages the Full Court on the hearing of her appeal. The fate of that challenge, one would think, would turn significantly upon what the transcript reveals in relation to that issue, by reference to the lead up to the application, the submissions then made, any reasons then given by the trial Judge and the subsequent course of the evidence of the mother herself.

15. Whatever the fate of the challenge embodied in Ground 2, either as to the substantive complaint or the reasons complaint, there do appear to be matters which are likely to engage the Full Court’s attention. Beyond concluding, as the Court does, that the mother has an arguable appeal, nothing more needs to be said.

16. In the context of this application, the apparent existence of arguable grounds of appeal does not elevate the application, but rather removes a basis upon which it might otherwise be refused. As noted at the outset of these Reasons for Judgment, the issue is discretionary. It involves balancing a number of considerations. As noted at the outset and as was fairly conceded by counsel for the mother, the father is entitled to the benefit of the trial Judge’s orders provided that so doing is not inconsistent with the best interests of the child.

17. Nothing to which this Court has been referred or has gleaned from the grounds of appeal and the Amended Notice of Appeal establish that the welfare of the child would be compromised, or be likely to be compromised if Order 5.4 were not stayed pending a hearing of the appeal. Nor would Order 5.4, continuing to have operation, render nugatory fruits of success if the mother is successful in her appeal to the Full Court. The Full Court, depending upon the evidence, if any before it at that point, could either continue the order pending a new trial or as counsel for the mother has urged this Court to, suspend its operation, or discharge the order, and revive the previous interim orders.

18. For those reasons, and notwithstanding the matters supportive of the application, the Court is not persuaded to grant a stay of Order 5.4.

I certify that the preceding eighteen (18 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman

Associate: 

Date:  16 February 2010