Champness and Hansen (No. 2)

[2008] FamCA 1012

FAMILY COURT OF AUSTRALIA

CHAMPNESS & HANSEN (NO. 2) [2008] FamCA 1012

FAMILY LAW – ORDERS – STAY – application by father for stay of parenting orders pending appeal – orders provide for relocation of children to Ireland – consideration of best interests of the children – application for stay was filed over three months after Notice of Appeal filed – mother has made arrangements for relocation – consideration of the hardship to the appellant if stay refused compared with the hardship to the  respondent if stay granted – whether refusal of the stay renders a successful appeal nugatory – consideration of merits of the appeal – application for stay refused

Family Law Rules 2004 (Cth) r 22.12

Carlin and Carlin (1977) FLC 90-320
In the marriage of Kelly (1981) FLC 91-017
Clemett and Clemett (1981) FLC 91-013
EJK and TSL (No 4) [2006] FamCA 1022
Brennan and Shaw (Stay Appeal) [2008] FamCAFC 138
W and W (unreported, 10 October 1996)
Sampson and Hartnett [2007] FamCA 732
CSN v JBN (1998) 24 Fam LR 174
Sanders (1976) FLC 90-078
K and B (2006) FLC 93-288
EJK and TSL (No 2) (2006) 35 Fam LR 590

APPLICANT: Mr Champness

RESPONDENT: Ms Hansen

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: ADF 226 of 2005

DATE DELIVERED: 10 NOVEMBER 2008

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE REASONS OF: BURR J

HEARING DATE: 10 NOVEMBER 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:	MR HEFFERNAN
SOLICITOR FOR THE APPLICANT:	HEFFERNAN & CO

COUNSEL FOR THE RESPONDENT:	GRAEME D HEMSLEY
SOLICITOR FOR THE RESPONDENT:	GRAEME HEMSLEY

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	MS HURLEY
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	LEGAL SERVICES COMMISSION

Orders

1. That the father’s Application in a Case filed on 30 October 2008 seeking a stay of the Orders made by the Honourable Justice Burr on 30 June 2008 be refused.

2. That liberty is granted to the parties and the Independent Children’s Lawyer to make application for costs in relation the father’s aforesaid Application in a Case filed on 30 October 2008 within twenty-eight [28] days of the determination of the Appeal against the Orders made by the Honourable Justice Burr on 30 June 2008 being delivered by the Full Court.

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

FAMILY COURT OF AUSTRALIA  AT  ADELAIDE

FILE NUMBER: ADF 226  of 2005

MR CHAMPNESS

Applicant

And

MS HANSEN

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I have before me for determination the father’s Application in a Case filed on 30 October 2008 in which he seeks that my Orders made on 30 June 2008, after a trial on evidence in these proceedings, be stayed pending the outcome of an Appeal that he has lodged against that decision of mine.

2. Rule 22.12 of the Family Law Rules provides the relevant detail as to a stay application. What that Rule makes clear is that the mere filing of a Notice of Appeal does not stay the Orders appealed from and unless otherwise ordered, there is to be no stay of the operation of Orders pending an Appeal. This reflects the principle that ordinarily a successful litigant should not be deprived of the fruits of their litigation, that reference coming from a decision in Carlin and Carlin (1977) FLC 90-320 being a decision of Watson SJ at page 76,696.

3. I now turn to the relevant principles and considerations to which I must have regard in determining the father’s Application for stay of those Orders.  It is entirely a discretionary matter and in that regard I refer to the decision of In the marriage of Kelly (1981) FLC 91-017 at page 76,015 where Fogarty J stated a stay is not to be granted as a matter of course and that appropriate or special circumstances need to be shown. To understand what those circumstances might be, I refer to the decision of Carlin and Carlin (supra) in which Watson SJ outlined the following matters as being relevant to any Application for a stay and I quote:-

   “Without in any way fettering discretion it seems to me that I should in this case consider:

   (a)the rights of the children (see sec. 43);

   (b)the delays as to appeal;

   (c)whether refusal of a stay renders a successful appeal nugatory;

   (d)the hardship to the successful respondent in comparison to the hardship of the appellant;

   (e)the grounds of appeal.”

4. Subsequent authorities have incorporated and expanded on these relevant factors initially identified by Watson SJ.  In particular I refer to the decision in Clemett and Clemett (1981) FLC 91-013, the principal authority I think it could be described as, with respect to stay applications in children’s matters. At page 76,175 Nygh J made the following oft-cited statement:-

   “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.”

5. Thus from those authorities that I have identified the relevant matters for my consideration in determining this Application of the father appear to be as set out below.

The interests of the children

1. Whilst in Clemett (supra) Nygh J identified that the welfare of the child was the paramount consideration in the determination of a stay application, subsequent authorities indicate that may no longer be the case.  In EJK & TSL (No 4) (2006) FamCA 1022, the Full Court quoted the above extract from Clemett and stated, at [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.’”

2. In Brennan and Shaw (Stay Appeal) (2008) FamCAFC 138, the most recent decision of the Full Court on the question of stays, the Full Court, after referring to the above passage from Clemett (supra) and the subsequent comments in EJK & TSL (supra) stated at [49]:-

   “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.”

3. Thus the best interests of the child, while no longer the paramount consideration in determining an application for stay, are a very significant consideration.

4. In considering the interests of the children, a relevant matter is whether the present circumstances for the children are satisfactory.  In Wilson and Wilson (an unreported decision of the Full Court delivered on 10 October 1996) Ellis J with whom the other members of the Court agreed, stated:-

   “I would with respect, at the outset, indicate that I am in complete agreement with the observations of the Full Court in Clemett and Clemett to which the trial Judge referred but, in my view, the trial Judge has misunderstood the reference in that passage to which she referred, the expression ‘the present circumstances of the child’.  The Full Court was there, in my view, referring to the circumstances prior to the making of the order, a stay of which is sought, not to the circumstances after the making of the order when the order has been put into effect.”

5. More recently in Sampson and Hartnett (2007) Fam CA 732 which involved an appeal from a refusal to grant a stay of orders that required the children to move from Geelong to Sydney, Coleman J, with whom Thackray and Mushin JJ agreed, stated with respect to the issue of the children’s current circumstances and their relevance to a stay application:-

   “34.  It is almost axiomatic that in the circumstances of this case, having considered a change with the implications which the trial Judge’s ordered [sic] had for the mother, she must have been satisfied that the current arrangements were less than satisfactory.  There is no question that such was her Honour’s view when one reads her reasons for judgment in the substantive parenting proceedings.

   35.  There is, I think, however a distinction to be drawn between satisfactory in the sense of less than ideal, which was clearly the situation in this case on the one hand and unsatisfactory in the sense of involving children in the risk of harm or abuse, if the orders of the trial Judge are not implemented.”

6. Within this context of what represents the best interests of the children in this case, another issue which arises is whether the frequency of changes for the children should be limited as much as possible.  In CSN v JBN (1998) 24 Fam LR 174, the Full Court, after referring to comments by Evatt CJ in Sanders (1976) FLC 90-078, emphasised the desirability of avoiding frequent changes to children’s residence and maintaining the status quo unless there is a need to protect the child. However, more recently, the Full Court in K and B (2006) FLC 93-288 stated, at paragraph 32:-

   “The granting or refusal of a stay involves an exercise of discretion by a trial Judge.  Whilst such discretion must be exercised judicially, in cases involving children, we accept that from time to time circumstances in existence at the date of the orders, or which occur from the date of orders until the hearing of a stay application, may be very relevant matters to be considered in the exercise of discretion in determining whether or not to grant a stay.  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.”

   This passage was recently cited by the Full Court in Brennan and Shaw (supra).

7. Before I determine those matters which require my attention in considering the best interests of the children, in my view, it is significantly linked in this matter to another of the matters I must consider, namely any delay as to the Appeal. 

Delay as to the appeal

1. Not just is the delay in filing the Appeal relevant, but also the length of time between the making of the original Orders and the filing of the stay application.  In this matter, my decision was delivered on 30 June 2008.  The Notice of Appeal was lodged in time but at the outer end of the time allowed, namely on 28 July 2008.  However, significantly, no application for stay was filed for over three months from that date, namely as I previously indicated on 30 October 2008.

2. Mr Heffernan, for the father, has indicated that the reason for that set of circumstances arising is because the father applied for legal aid on 25 September 2008 in order to pursue his appeal.  It was not until 16 October 2008 that the Legal Services Commission approved his application to seek Orders staying my Orders of 30 June 2008 pending the Appeal.  He then said that within two weeks of that application being approved, the stay application was lodged.  He also indicated in his submissions that the mother must have known and was entitled to assume that, as he was appealing the Orders and that the Notice of Appeal was lodged on 28 July 2008, she should have known that he would then be intending to seek a stay of those Orders. 

3. However, as the Rules indicate and as I quoted earlier, there is no automatic stay of the operation of Orders pending an Appeal the principle being reflected in that position is that a successful litigant should not be deprived of the fruits of the litigation.  It may be that if there had been an indication of notice of intention in that regard that any actions then taken by the mother subsequently would be, and could be, viewed differently by the Court.  However, as I understand it, not even a letter of intention was forwarded to either the legal representatives for the mother or the Independent Children’s Lawyer that it was indeed the intention of the father to seek a stay of those Orders.

4. Looking at the Notice of Appeal filed by the father and the Orders that are being sought, it does though provide some indication of what the father intended and wanted, namely in paragraph 2 he sought an order “That the said mother and children be ordered to remain permanently in Australia until the youngest child reaches the age of 12 years”.  He then seeks orders for further substantial time with the children.

5. The delays though have continued.  The father has yet to lodge his Appeal books.  They were due by 6 November 2008 but have still not been filed.  However, pursuant to the Rules he does have a further 28 days in which to lodge the Appeal books, namely until 3 December 2008.  If they are not lodged at that time then the Appeal will be deemed abandoned.  If the father though exercises his entitlement under the Rules to file the Appeal books at that late stage, it will have been a period of some 5 months and more since my decision.

6. As I said, it is my view that the issue of the delay is relevant also as to the question of what might represent the best interests of the children pending the determination of the Appeal.  In that regard, the mother acted quite appropriately and made arrangements to book the children’s and her airfares to Ireland in accordance with the Orders I made on 30 June 2008.  I have before me now a copy of the relevant airline bookings for the mother and the children and it would appear from the booking sheet that those bookings were made on 11 July 2008.  Thus she moved swiftly after I had made my Orders but received no indication until 30 October 2008 that it was inappropriate to continue with her plans.  Indeed, it appears from her Affidavit handed to me this day that in addition to booking and paying for the tickets, she has not renewed her lease for her Sydney premises.  Her Affidavit tells me that as she was entitled to do pursuant to my Orders and as she had received no notice that she should be doing anything different, she did not renew the lease and has given her formal notice of intention to vacate the property.  She tells me in the Affidavit that she is now required to leave that property by 27 November 2008 and will be spending the few weeks prior to her departure for Ireland with her aging Aunt, the Aunt was mentioned on a number of occasions during the trial of the proceedings before me.  Part of that period of time though will also be spent by her in complying with the other Orders that I made for the father to spend time with the children in the presence of the paternal grandmother or paternal aunt in Y in Queensland.  I also have before me a copy of the mother’s bookings for that ordered period of time that the father is to spend with the children in Y, those bookings covering a period from 14 December 2008 to 20 December 2008.  The father has indicated though that he may not take advantage of that occasion.

7. I note too that the mother has made arrangements for the children to commence schooling in Ireland on 12 January 2009.  The mother, again as I deem her to have been entitled to have done in the absence of any application for stay of the Orders, has told the children’s school in Sydney that they will not be returning in the future.

8. The mother too has incurred costs in making the relevant and appropriate plans, although costs in which she was clearly assisted by her family in Ireland.

9. The father, in his Notice of Appeal, does not seek any Order ever that the children are to live with him.  He does not resist the mother remaining in Sydney.  The children have always lived in the principal care of the mother and by acknowledgment of the father, will always live with the mother.  She will remain their primary attachment figure no matter what the physical living arrangements might be or the country in which the children and the mother reside.  Indeed interestingly, the father contemplates that the children will eventually relocate to Ireland and acknowledges this in his Notice of Appeal by indicating that the children should not be permitted to relocate until the youngest child reaches 12 years of age.  Thus the Orders which I made that the children live with the mother have been recognised by the father as being the most appropriate in all the circumstances and are Orders that represent the children’s best interests. 

10. I also note that the father has made no formal application for any extra time to be spent with the children between the ordered times that I made for him to have time in late December 2008 and the next occasion of face to time ordered by me, namely during the July / August Irish school holidays.  Having said that I note the intimation from Mr Heffernan from the bar table that the father would be seeking a continuation of the present regime of orders that I put in place pursuant to my Orders.  I note though that it is not supported by any formal application before the Court presently.

11. Thus in summary, I delivered my decision on 30 June 2008, the Notice of Appeal was lodged on 28 July 2008 and there was no application for stay made until 30 October 2008.  In the interim the mother had made all arrangements and plans to proceed with the permission that I had given her to relocate to Ireland of the view, for a good four months, that she was entitled to do so.  As a consequence plans have been put in place which I accept will be extremely difficult for her to reverse.  I am entitled, and indeed encouraged by the Full Court in K and B (supra), to consider arrangements and significant events which have occurred between the making of the Orders and the eventual hearing of the Appeal. 

12. I note that the hearing of the Appeal will likely occur in March 2009, although again only if the father complies in filing the Appeal books by no later than 3 December 2008.  The mother would have to find somewhere for her and the children to live other than with her aging Aunt, which is clearly an inappropriate arrangement.  She or her family will incur the costs associated with cancelling tickets or rearranging airline tickets already booked.  She will have to make arrangements again for the children to be either re-enrolled in their existing school or in another school.  The mother’s and the children’s hopes and expectations will need to be readjusted.

13. A contra-indicator of positive outcomes and best interests for the children which I must consider, is the question of potentially multiple shifts between countries and education systems.  If the Appeal is successful, then the children will need to remain in Australia until the youngest child is at least the age of 12 years on the father’s application, or some other date that might be deemed appropriate by the Full Court.  If I grant the stay, they will remain in Australia and within the education system more recently familiar to them.  The least number of changes then which the children would experience in the event of the Appeal being successful would be if I granted the stay application.  However, I note from my reasons that the children have already experienced the education system in Ireland and have demonstrated their adaptability between the two systems in the past.  I was confident that they could do so again in the future.  Also, in my view, the ages of the children are relevant here, E being almost 8 years of age and O almost 5 years of age.  Thus I am entitled to have regard to the fact, from the evidence at trial and from their young ages, that alteration to their educational experiences at this age and stage of their lives is something that they could accommodate.  Thus in relation to the factors of the children’s best interests and the issue of delay, I am satisfied that both separately and in combination the appropriate outcome would be to refuse the father’s application for a stay.

The hardship to the appellant if the stay is refused compared with the hardship to the respondent if the stay is granted

1. The hardship to the appellant if the stay is refused is that he would see less of his children if indeed he did file an application for the continuation of the present regime and that application was successful.  The hardship to the respondent if the stay is granted is in relation to all of those matters to which I have already referred namely, as to the flight, schooling and accommodation arrangements made by her and her and the children’s hopes and expectations.  

2. I think it is also appropriate that I have regard to the facts which existed prior to me making the Orders and upon which I relied in part in making my Orders namely, the significant unhappiness that the mother had experienced whilst being obliged to remain in Australia and the impact that it had had and I was concerned was likely to continue to have, upon her parenting capacity into the future.  Both from the perspective of the best interests of the children and issues of hardship to the respondent, I believe that the mother ought be afforded the opportunity to parent the children in the best manner of which she is capable.

3. Any hardship to the appellant in my view though is minimal in the sense that he will be continuing to maintain contact with the children through the communication that I ordered and indeed has an ordered period of personal time to be spent with the children in Australia in July / August of 2009.

4. A relevant matter here to is the matter put to me from the bar table by Mr Heffernan which is that the father has exercised all of his entitlements pursuant to my Orders and indeed, as a consequence, his relationship with his children has gone from strength to strength and has enabled him to continue to build upon his relationship with the children.  That was the result that I had hoped for and indeed optimistically predicted in my reasons for Judgment.  Given that strengthened and strengthening relationship, I am confident that there will be no negative impact upon the father’s relationship with his children at any time in the future, but certainly between the time the children are to depart Australia’s shores on 23 December 2008 and the hearing of any Appeal during possibly the week of 2 March 2009.  Thus on any hardship test, I am satisfied that the hardship to be experienced by the respondent would be far greater by granting the stay than any hardship to be experienced by the appellant if I declined the stay.

Whether the refusal of the stay renders a successful appeal nugatory or will make it impossible or impractical to restore the situation presently existing

1. In EJK and TSL (No 2) (2006) 35 Fam LR 590, the Full Court dealt with an appeal from a refusal to grant a stay of orders that provided for a child to be returned to Korea. It was argued that to refuse the stay would render the appeal nugatory. The stay had been refused on the basis that the father had provided undertakings to the Court that he would return the child to Australia if required by the Family Court. On appeal it was found that the trial Judge’s discretion miscarried as insufficient weight was given to the lack of enforceability of the undertakings. Korea was not a signatory to the Hague Convention.

2. The Oxford Dictionary definition of “nugatory” is to this effect:-

   “trifling, worthless, futile, inoperative, not valid”.

3. In my view, it is simply not possible to suggest that refusing the stay would render any successful appeal nugatory in the circumstances of this case.  As the mother has found out in the sense of hard reality, Ireland is indeed a signatory to the Hague Convention.  She was obliged, pursuant to an Order made under the Hague Convention, to return from Ireland to Australia with the children and she thus knows full well the consequences of failing to abide any Orders of the Court.  Thus, not just because of the existence of the Hague arrangements between Australia and Ireland but also because of the mother’s first hand experience of its successful application, I am satisfied that by allowing the mother to go to Ireland with the children and by refusing the stay, it would not render any successful appeal nugatory.

4. As I indicated, I am satisfied that the children are adaptable and they would be able to comfortably accommodate a reintroduction into their educational lives of the Australian education system.  Also given the foreshadowed timing of the hearing of the Appeal, any impact upon the children would be for a minimal period of time.

5. In all of the circumstances, given the reasons that I identified in my Reasons for Judgment, it is appropriate in  my view for the mother and the children to be able to enjoy the fruits of the litigation pending the determination of the appeal on the basis that the practical arrangements can be reordered without any negative impact upon the children or the father’s capacity to redress any disadvantage that he claims to have suffered or which he may suffer whilst the children are absent the country.  That consideration, in my view, supports a refusal of the stay by me.

Consideration of the grounds of appeal and the merits of the appeal

1. This is a matter which is always hard for a trial Judge to relevantly apply.  In other words, I am being asked to assess the prospects of success of an appeal against my decision.  Fortunately this difficulty has been recognised on numerous occasions, including in the most recent decision of Brennan and Shaw (supra) to which I earlier referred where the Full Court commented:-

   “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.”

2. In this matter, given the filing of the stay application, I had cause to review my reasons in full yet again.  As the Full Court indicated, it is very difficult having done my very best to correctly identify all the proper principles and apply the facts as elicited in the hearing of the case to those principles, to be satisfied that I was wrong in the conclusions that I drew.  Having reviewed the matters again in my reasons within the context of also having to decide a number of other relocation matters since, and having at all times on those occasions been obliged to consider the relevant principles over and over again, I am not satisfied that I have misidentified the relevant principles pursuant to the authorities and I am not satisfied that I have misidentified the relevant facts to be applied to those principles and I am not satisfied that the decision I have made exceeds the reasonable bounds of the exercise of my discretion in those circumstances.  However, relocation matters are always extremely difficult matters to determine and no trial Judge would be vain enough to suggest that a Full Court of his or her peers would not view the position differently and would not take the view that the trial Judge’s discretion had miscarried.

3. Whilst I cannot see that such a finding is likely in the circumstances of this matter, I do not rule out the possibility of the appeal being successful.  However, within the context of my obligation to consider the grounds of appeal and the merits of the appeal and the likely success of the appeal within the context of this stay application, again I do not believe that it gives rise to a basis upon which I should grant the stay.

The bona fides of the appellant

1. This is a relevant consideration in terms of whether the appeal and the stay application are legitimate or merely a delaying tactic, which arises from a consideration of K and B (2006) FLC 93-288.

2. It is difficult for me to infer any motive to the father’s delays in pursuing the matter and thus I do not believe it is appropriate for me to do so.  Certainly if he was improperly motivated then his actions have constituted quite a significant and effective tactic in delay.  However, I accept the matters put to me by Mr Heffernan as to the reasons given for the delay, although in my view, the delays have been inordinate and the matter could have been attended to on a far more expeditious basis.  An application for stay could have been lodged at the same time as the Notice of Appeal.

The length of time it is expected to take for the appeal to be heard

1. This is the remaining matter for my consideration.  As I said earlier, provided the father complies with the time limits imposed upon him and has the appeal books lodged by the 3 December 2008, then he can expect his appeal to be heard in March 2009.  That could be relevant on two bases.   One is that given that it is now a relatively short time until the appeal is to be heard and hopefully the decision delivered, then it would be appropriate to grant the stay and leave all matters as they are and the status quo in place.  However, what it also means is that as it will not be long before the appeal is heard and hopefully not long before the result is known, there will be a minimal, if any, impact upon the children’s education and general circumstances.  As I said earlier, on balance, it is my view that it is appropriate to refuse the stay for all the reasons mentioned above including because the consequences for the mother of having to reinstate all of those matters which she has quite properly put aside particularly as to accommodation, education and airfares, mean that the balance in the exercise of my discretion falls in her favour.

2. A refusal of the stay application is supported by the Independent Children’s Lawyer.

3. I thus refuse the father’s application for stay filed on 30 October 2008.

I certify that the preceding forty two (42) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr.

Associate: 

Date:  10 November 2008.