Canh and Canh (No 2)
[2020] FamCA 941
•26 October 2020
FAMILY COURT OF AUSTRALIA
CANH & CANH (NO. 2) [2020] FamCA 941
FAMILY LAW – PRACTICE AND PROCEDURE – Stay of orders – Where the father abandoned his application to stay the interim parenting orders – Where the father seeks only a stay of procedural orders concerning single expert witnesses – Where the mother opposes the father’s stay application – Where the father adduced no evidence in his affidavit to support his stay application – Where no reasonable basis to stay the orders – Application dismissed – No order as to costs.
FAMILY LAW – CHILDREN – Where the father seeks expansion of the time the children spend with him on an interim basis – Where there is an inherent inconsistency between the father’s proposal to expand the children’s time with him and the basis of his appeal from the interim parenting orders – Where the mother has already relocated and the parties agreed on the new school the children should attend – Where the father abandoned his application for an order requiring the children to maintain their enrolment at former school – Where the mother opposes expansion of the children’s time with the father – Where the mother seeks an injunction restraining both parties from taking the children to medical providers without the consent of the other – Ordered the children spend additional time with the father – Where the Court declined to make the injunction sought by the mother – No order as to costs.
Family Law Act 1975 (Cth) Pts VIII, s 117
Family Law Rules 2004 (Cth) r 22.09
Cahn & Cahn [2020] FamCA 882
Federal Commissioner of Taxation v Myer Emporium Ltd (No.1) (1986) 160 CLR 220
Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No.1) (1986) 161 CLR 681
APPLICANT: Ms Canh
RESPONDENT: Mr Canh
FILE NUMBER: NCC 2413 of 2016
DATE DELIVERED: 26 October 2020
PLACE DELIVERED: Newcastle
PLACE HEARD: Newcastle
JUDGMENT OF: Austin J
HEARING DATE: 26 October 2020 REPRESENTATION
COUNSEL FOR THE APPLICANT: Not Applicable
SOLICITOR FOR THE APPLICANT: Ms Fielden, Fielden & Associates
COUNSEL FOR THE RESPONDENT: Not Applicable
SOLICITOR FOR THE RESPONDENT: Not Applicable Orders
1.Order 7(a) made on 15 June 2018 (as amended on 22 September 2020 under the slip rule) is amended so as to provide that the children’s time with the father concludes at 9:00 am on Monday (in lieu of 5:00 pm on Sunday).
2.Otherwise:
a)The Application in a Case filed on 19 October 2020 is dismissed;
b)The Response to an Application in a Case filed on 26 October 2020 is dismissed; and
c)Any and all other outstanding applications for interim relief are dismissed.
3.No order as to costs.
NOTATION
A.None of the orders made on 18 September 2020 are stayed pending determination of Appeal Number EAA…/2020.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Canh & Canh has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
FAMILY COURT OF AUSTRALIA AT NEWCASTLE FILE NUMBER: NCC 2413 of 2016
Ms Canh Applicant
And
Mr Canh Respondent
EX TEMPORE REASONS FOR JUDGMENT
1.On 18 September 2020, I made a suite of orders which had dual effect (Cahn & Cahn [2020] FamCA 882).
2.First, the orders adjusted interim parenting orders made on 15 June 2018 (as amended under the slip rule on 22 September 2020) (Orders 1 and 2).
3.Secondly, the orders altered former procedural orders concerning the engagement, instruction and payment of single expert witnesses in the parties’ ancillary dispute under Part VIII of the Family Law Act 1975 (Cth) (“the Act”) (Orders 4, 5 and 6).
4.On 16 October 2020, the father appealed from all of those orders, even though the Notice of Appeal in its current form only seems to complain about the parenting orders.
5.On 19 October 2020, the father filed an Application in a Case, which was listed before me for determination today (Monday, 26 October 2020).
6.Following some elucidation of the current circumstances and the father's real intentions, the situation is as follows:
a)the father seeks a stay of the single expert procedural orders;
b)he now abandons his application to stay the interim parenting orders, but instead pursues an application to amend the existing arrangements by expanding the time the children spend with him;
c)he abandons his application for an order requiring the children to maintain their enrolment at their former school, because the parties agreed on the new school the children should now attend in Sydney; and
d)he abandoned his application for an order permitting him to file an Amended Notice of Appeal, once I explained he already has a right to do so under rule 22.09(1) of the Family Law Rules 2004 (Cth).
7.Overnight, in the early hours of this morning, the mother filed electronically through the court portal her Response to an Application in a Case, together with her affidavit. The father had no objection to the mother's reliance upon either the Response or her affidavit.
8.The mother opposes all of the relief sought by the father, but she sought additional relief being:
a)an injunction restraining both parties from taking the children to medical providers without the consent of the other; and
b)her costs of these proceedings.
9.I shall deal separately with the various residual claims for relief.
Stay of the single expert procedural orders
10.The discretion to stay the operation of orders should only be exercised where circumstances exist which justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his or her litigation pending the determination of any appeal. Such circumstances justifying a stay will exist where it is necessary to prevent the appeal from being nugatory or for whatever other reason there is a real risk it will not be possible for a successful appellant to be restored substantially to his or her former position if the judgment against him or her is executed (see Federal Commissioner of Taxation v Myer Emporium Ltd (No.1) (1986) 160 CLR 220 at 222-223). The Court should also consider the prospects of the appeal and where the balance of convenience lies (see Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No.1) (1986) 161 CLR 681 at 685).
11.The father conceded there was no evidence within his affidavit to support his application to stay the procedural orders concerning the single expert witnesses. When asked to articulate why the orders should be stayed, he could not do so. The father's simple refrain was that I was biased against him because I accepted the mother's submissions at the last interim hearing. When I tried to elucidate whether he claimed actual or apprehended bias, he alleged both. Nonetheless, he could not articulate anything I said or did which supposedly demonstrated such bias. He said he could not do so until the transcript from the last hearing was to hand.
12.In his affidavit the father deposed:
(31)I find the delay, and publishing of His Honour’s Ex Tempore Reasons for the Orders beyond the appeal period as being unfair, and possibly a tactical manoeuvre.
(32)On 18th September 2020, I advise Justin Austin, that there is potential bias and conflict of interest as (the mother) was a former law student at the [University] and was also trained by Justice Austin.
(As per original)
13.After the hearing on 18 September 2020, my ex tempore reasons were ordered and the settled reasons were published on 22 October 2020. In a busy judicial calendar, I would not have thought that delay was unreasonable, even if the father considers it to be so.
14.As for the suggestion that I “trained” the mother as a former student of the University, the proposition is misconceived. I have no idea at all who the mother is. The closest I could possibly have come to knowing the mother would be by judging a university moot in which she would have been but one of numerous participants. I do not know if that actually happened. The suggestion I am or might be biased against the father, because I know the mother from such fleeting involvement is, in my opinion, absurd.
15.Given the father's inability to explain how or why the procedural orders will be challenged in the appeal, aside from him asserting my bias, there is no reasonable basis upon which the orders should be stayed.
16.On present indications, the appeal from those particular orders lacks merit and the stay of the orders would unreasonably delay the procurement of vital evidence for the dispute under Part VIII of the Act.
17.For completeness, I asked the father whether his belief in my bias led him to orally apply for me to disqualify myself from hearing these current applications, but he said not. He expressly abstained from making any disqualification or adjournment application.
Parenting Orders
18.Had the mother not already moved to Sydney with the children, I would have stayed the parenting orders pending the appeal because, arguably, the appeal is now nugatory following their implementation.
19.The mother has committed to a new 12 months lease in the northern suburbs of Sydney and the children have been enrolled in a new school nearby. The school was selected jointly by the parties. Sensibly, the father realised it would now be disadvantageous for the children to be switched back to their former school. In addition, the mother is now bound by her new lease and the father did not undertake to indemnify her against all of the future rent payments if she is forced to return to her former residence. In any event, there was no evidence it was even possible for the mother and children to return to their former residence.
20.Accepting that the mother and children should now remain where they are in Sydney, the father's application was to instead expand the time the children should spend with him.
21.Currently the children spend time with him each alternate week from after school on Wednesday until Sunday afternoon (Order 7(a) made on 15 June 2018 and amended on 22 September 2020) and from after school on Wednesday until the commencement of school on Thursday in the intervening weeks (Order 7(b) made on 15 June 2018 and amended on 22 September 2020).
22.In submissions, the father wanted to expand such time even beyond his filed application. He wants to add Sunday nights to the alternate weekends, so he returns the children to school on Monday mornings. In the intervening weeks, he wants to return the children to the mother on Saturdays, thereby picking up Thursday and Friday nights in the intervening weeks.
23.Of course, there was an inherent inconsistency between the father's proposal and the basis of his appeal. His appeal from the orders made on 18 September 2020 is partly premised on the argument that he and the children now have too much travel to do, by him getting them to and from school in Sydney on the days they are in his care, but he now wants to do even more travel.
24.He could not sensibly explain how the premise of his appeal sits comfortably with his current proposal for the children to spend an extra two school days in his care each fortnight. His proposal is for a regime which expands the children's time with him from five to eight nights per fortnight, when the orders he now wants to change were made with his consent on 15 June 2018. Given the father's willingness to do even more travel with the children, I have some difficulty seeing how he intends to prosecute his appeal against the orders made on 18 September 2020, by asserting the orders are unworkable because of the travel time they entail.
25.However, that is not to say the father's current proposal to amend the orders has no merit at all. I am persuaded his return of the children to school on Monday morning each alternate weekend is feasible. But there is no convincing reason to alter the Wednesday night regime in the intervening weeks.
Medical Injunction
26.The mother initially sought an injunction against only the father in the following terms:
2.Pending further Order, the father, be restrained by injunction, from presenting the children or either of them to a Psychologist, Psychiatrist, counsellor or other mental health practitioner or to any other health practitioner for the purposes of mental health treatment, without the express written consent of the Mother.
(As per original)
27.In submissions, she agreed to submit to a reciprocal injunction in those same terms. However, I declined to make any injunction at all.
28.The problems with the proposal are manifold. First, both parties retain parental responsibility for the children, save for that carved out for the mother by Order 1 made on 18 September 2020. Secondly, both parties are intelligent and are capable of making rational decisions about when the children need medical attention. Thirdly, the parties disagree over who should be the children's regular general practitioner and whether or not they even need counselling, and there is insufficient evidence enabling the court to make those decisions for the parties at this point in time. Fourthly, the mother submitted the father was subjecting the children to “systems abuse” by taking them to different medical providers, but that submission over-reaches the evidence put before me. Any competing allegations about one or the other foolishly “doctor shopping” will be addressed later on tested evidence at the trial.
Costs
29.The mother sought $3,301.76 in costs from the father for contesting this interim dispute.
30.The mother deposed in support of that application:
46.Throughout this matter, [the father's] actions have caused delay and have increased my legal costs. For example, after he had a falling out with his first solicitors, he went to Watts McCray. He then got his new solicitors to ask me for duplicate copies of all of the correspondence, file notes and financial disclosure documents that we had already sent to his previous solicitors. When he subsequently had a falling out with Watts McCray [the father] contacted my solicitors and requested a third set of all the financial disclosure documents previously disclosed by me. This was because Watts McCray are holding a lien over his file as security for an unpaid bill.
(As per original)
31.I have no idea how that information, even if correct, influences the question of costs on this hearing.
32.The father’s application was listed for the initial purpose of staying appealed orders. The father realised the application to stay the appealed parenting orders was futile and sensibly abandoned it. The parties joined issue on the extent to which the interim parenting orders made in June 2018 should be amended and each enjoyed some limited success. The children will now spend one extra night per fortnight with the father, as he wanted and the mother opposed, but he did not get the extra two nights per fortnight he wanted. The mother did not get the injunction she wanted.
33.Section 117(1) of the Act will apply. There will be no order for costs.
Conclusion
34.For those reasons I make these orders.
35.I also make the notation that none of the orders made on 18 September 2020 are stayed pending determination of appeal number EAA…/2020.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 26 October 2020
Associate:
Date: 12 November 2020
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