CHEADLE & POINTER
[2020] FamCA 327
•7 May 2020
FAMILY COURT OF AUSTRALIA
| CHEADLE & POINTER | [2020] FamCA 327 |
| FAMILY LAW – CHILD RELATED PROCEEDINGS – Stay – Where final Orders were made for the child’s primary place of residence to be with the father – Where the mother applied for a stay of Orders pending the determination of her appeal from final parenting Orders – Where the Application is made in circumstances where the COVID-19 pandemic is prevalent and the mother contends that the child’s health concerns make her vulnerable to the virus – Whether the child would be exposed to an unacceptable risk in the care of the father – Where the mother has not complied with Orders of the Court – Where the Court dismisses the mother’s Application for a stay of Orders. |
| Public Health Act 2010 (NSW) s. 7 |
| Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685 Allesch v Maunz (2000) 203 CLR 172 Clemett & Clemett (1981) FLC 91-013 FJ & PN Curran Pty Ltd v Almond Investors Land Pty Ltd [2019] VSCA 236 Friscioni & Friscioni [2009] FamCAFC 43 Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681 JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 K & B (2006) FLC ¶93-288 Lee v Lee (2019) 372 ALR 383 M v M (1988) 166 CLR 69 McDonald v Queensland Police Service [2018] 2 Qd R 612 Pointer & Cheadle [2020] FamCA 183 Ribeiro v Wright [2020] CarswellOnt 4090 Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 Sampson & Hartnett [2007] FamCA 732 The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Ltd [No.1] (1986) 160 CLR 220 |
| APPLICANT: | Ms Cheadle |
| RESPONDENT: | Mr Pointer |
| INDEPENDENT CHILDREN’S LAWYER: | Delaney Lawyers |
| FILE NUMBER: | SYC | 7392 | of | 2013 |
| DATE DELIVERED: | 7 May 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland DCJ |
| HEARING DATE: | 6 May 2020 |
REPRESENTATION
| THE APPLICANT IN PERSON. |
| THE RESPONDENT IN PERSON. |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Hearl of Delaney Lawyers |
Orders
The Application in a Case filed by Ms Cheadle on 27 April 2020 is dismissed.
The Application in a Case filed by Mr Pointer on 27 April 2020 is listed before Justice Rees for an interim hearing on 12 May 2020 at 10.00am.
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 Cheadle & Pointer 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 SYDNEY |
FILE NUMBER: SYC 7392 of 2013
| Ms Cheadle |
Applicant
And
| Mr Pointer |
Respondent
REASONS FOR JUDGMENT
Introduction
This decision concerns an Application filed by Ms Cheadle (“the mother”) on 27 April 2020 for a stay of the parenting Orders that I made on 26 March 2020 concerning the child, X born … 2012 (“the child”). The Application is opposed by both the father, Mr Pointer (“the father”) and the Independent Children’s Lawyer.
The Application is made in circumstances where, since the last date that this matter came before me prior to judgment delivery, being 21 November 2019, the international community, including residents of Australia, have been experiencing a significant pandemic due to the prevalence of a coronavirus which has been termed “COVID-19”. The mother has expressed concern that, as the child has a history of asthma, she is particularly vulnerable to succumbing to the disease and the adverse health consequences that would result.
For these reasons, the mother has failed to facilitate the child spending time with the father since 2 March 2020. That is, the mother has failed to comply with either the Orders that were in place at the time of the hearing, being Orders made on 27 November 2017, or the Orders that I made on 26 March 2020 requiring the mother to take necessary actions to enable the child to spend time with the father.
The mother contends that, during the COVID-19 pandemic, the child would be exposed to an unacceptable risk if she were to spend time with the father at a location other than the mother’s home. In that respect, the mother contends that the father resides near a nursing home where several residents have succumbed to the COVID-19 virus. The mother further contends that the child is at risk when spending time with the father because his place of residence is also close to a school at which a student was diagnosed as also having been infected by the COVID-19 virus.
I have determined that, in considering the mother’s Application for a stay of Orders, it is appropriate for the Court to have regard to the changed circumstances that have occurred since 21 November 2019. Most significantly, the COVID-19 pandemic has been described as a once-in-100-year crisis that is having a significant impact on residents not only of this country but also internationally.
The mother has, however, failed to satisfy me that the child is at any greater risk of being infected by the disease in the care of the father. This includes by living in the father’s household at his current address.
For reasons which I set out below, the mother has not satisfied me that it is appropriate or in the best interests of the child for me to accede to her Application for a stay of the Orders that I made on 26 March 2020.
Relevant documents
The mother relied upon the following documents:
a)Application in a Case filed 27 April 2020;
b)Affidavit of the mother filed 27 April 2020;
c)Tender bundle of annexures to the Affidavit of the mother filed 27 April 2020; and
d)With leave and no objection by the father or Independent Children’s Lawyer, Affidavit of the mother filed 5 May 2020.
The father relied upon the following documents:
a)Response to Application in a Case filed 28 April 2020; and
b)Affidavit of the father filed 28 April 2020.
The father sought to further rely upon an Affidavit filed 27 April 2020 that was filed in support of an Application in a Case filed by the father on 27 April 2020. In that Application in a Case, the father seeks a recovery order in respect to the child.
In circumstances where, in my reasons for judgment delivered on 26 March 2020 (“the primary judgment”),[1] I made adverse findings in respect to the mother’s credit, particularly at [150], [217], [308], [355] and [413], I have determined that it would be inappropriate for me to hear the father’s Application for a recovery order. I have, instead, referred that matter to be heard by another Judge of this Court. Accordingly, in arriving at my decision in this matter, I have not had regard to the father’s Affidavit filed 27 April 2020.
[1] [2020] FamCA 183.
Legal principles
In Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 (“Aldridge”), the Full Court noted at [17], that an appeal in respect of parenting orders is an appeal from a discretionary judgement. The Full Court further noted that there are “well established principles on the limits on interference by an appellate court with such a judgment (see House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716)”.
The Full Court in Aldridge (supra) set out the following relevant principles relating to an application for a stay of parenting orders:
1.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 any “special” or “exceptional” circumstances;
2.A person who has obtained a judgment is entitled to the benefit of that judgment;
3.A person who has obtained a judgment is entitled to presume the judgment is correct;
4.The mere filing of an appeal is insufficient to grant a stay;
5.The bona fides of the applicant;
6.A stay may be granted on terms that are fair to all parties – this may involve a court weighing the balance of convenience and the competing rights of the parties;
7.A weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;
8.Some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
9.The desirability of limiting the frequency of any change in a child’s living arrangements;
10.The period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and
11.The best interests of the child the subject of the proceedings are a significant consideration[2].
[2] The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well-known: see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Ltd [No.1] (1986) 160 CLR 220 at 222-3; Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685 at 693-5; Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681 at 685; Clemett & Clemett (1981) FLC 91-013 at 76,175; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332.
Consideration
Consideration of the first four of the criteria adumbrated in Aldridge (supra) is in the context where the focus of the Court in making parenting orders is on the best interests of the child. In that context, as stated by the High Court in M v M (1988) 166 CLR 69 (“M v M”) at 75 to 77, “[p]roceedings for custody or access are not disputes inter partes in the ordinary sense of that expression”. Accordingly, it may be inappropriate to characterise the outcome of parenting proceedings as a victory for one or other of the parties. In this case, the primary judgment was not totally in accordance with the orders sought by either party. Nonetheless, it can reasonably be said that the primary judgment and Orders favoured the father to the extent that the Orders provided for the father to have sole parental responsibility and for there to be a change in the child’s residence from the mother’s household to the father’s household.
Considered in that context, in terms of the first four criteria set out in Aldridge (supra), the father is entitled to presume that the judgment is correct and the mere filing of an appeal by the mother is insufficient to grant a stay. The mother carries the onus of establishing a proper basis for the stay, however, it is not necessary for her to demonstrate any “special” or “exceptional” circumstances.
The Orders made on 26 March 2020 have very significant implications for the mother and the child, as well as, for that matter, the father, and there is no issue that the mother is bona fide in filing her appeal in terms of the fifth principle adumbrated in Aldridge (supra).
Principle 6, as stated in Aldridge (supra), requires me to weigh the respective balance of convenience and competing rights of the parties with a view to potentially granting a stay on terms that are “fair to all parties”.
In considering the balance of convenience, the argument falls both ways.
In considering the potential impact on the father, the history of the mother’s conduct, as detailed in the primary judgment, together with her conduct in the period since the judgment, including in not permitting the child to spend any time with the father since 2 March 2020, satisfies me that, in the event of a stay being granted, the child will spend limited and irrregular time with the father and the broader paternal family between now and the date of determination of the mother’s appeal.
In considering the potential impact on the mother, in circumstances where the mother has not retained the services of a psychologist to obtain appropriate therapy, in accordance with Order 9 of the Orders made on 26 March 2020, the Orders provide for the child to spend only one (1) night per fortnight with the mother. I accept that such an outcome is likely to cause profound distress to the mother.
In that respect, the mother contends that the Orders providing for that outcome should not take effect because she has complied with her obligations pursuant to Order 9(a). Specifically, at paragraph 16 of her Affidavit, she states:
I made an appointment with my doctor, Dr SS on 8 April 2024 for a mental health care plan and referral. Dr SS states in her report that I do not suffer from anxiety. Therefore, she could not give me a Mental Health Care Plan or a referral.
The report from Dr SS, to which the mother refers, is annexure G in the mother’s tender bundle. The document is a brief report, in the form of a medical ceriticate, dated 8 April 2020 and relevantly states:
To whom it may concern,
I certify that I have reviewed Ms Cheadle on 08/04/2020. We have done a DASS-21 score together, which is a validated tool for assessing stress, depression and anxiety. Ms Cheadle scores 0 (zero) on testing at present. She describes no features of anxiety during our discussion. Ms Cheadle states that she does get stressed if her daughter is unwell, which certainly seems within a normal reaction range for that situation.
In summary, at present, Ms Cheadle does not show evidence of anxiety.
That certificate is of little weight for the following reasons:
·Dr SS has not stated that she has specialised knowledge based on her training, study or experience, nor has she set out that the opinion she expresses in that certificate is wholly or substantially based on that knowledge;
·There is no evidence that Dr SS was provided with a copy of my Orders or reasons for judgment dated 26 March 2020 or the reports of Dr B dated 26 October 2015 and 16 July 2018. Instead, it appears that the opinion of Dr SS is based on the subjective responses provided by the mother. This is in circumstances where I have previously found that the mother lacked credibility in respect to aspects of the evidence that she gave in the substantive proceedings.
The mother further states, at paragraph 17 of her Affidavit:
Furthermore, I made an appointment with phycologist [sic] Dr R and asked her if she could provide any treatment for me. She assessed me and advised me that no treatment was needed.
The mother has not provided a report from Dr R and, as noted by the Independent Children’s Lawyer, the mother’s evidence is heresay in that respect. Moreover, there is no evidence that the mother has complied with Order 9(e) of the Orders made on 26 March 2020, which relevantly provides as follows:
(e) The mother is to provide a copy of the following documents to the therapist prior to or at her initial appointment:
(i) A sealed copy of these Orders;
(ii) Deputy Chief Justice McClelland’s reasons for judgment; and
(iii) Dr B’s reports dated 26 October 2015 and 16 July 2018.
I, therefore, give no weight to paragraph 17 of the mother’s Affidavit filed 27 April 2020.
Insofar as the mother will suffer significant detriment as a result of the impact that the Orders made on 26 March 2020 will now have, in circumstances where the mother has failed to comply with her obligations under Order 9 including, specifically, Order 9 (e), regrettably, the mother has been the master of her own destiny. That is, instead of the child spending five (5) nights per fortnight with the mother, equal school holiday time and special occasions, in accordance with Order 6 of the Orders made on 26 March 2020, the child will, instead, spend just one (1) day and one (1) night with the mother per fortnight in accordance with Order 5 of the Orders made on 26 March 2020.
In considering principle 7 as stated in Aldridge (supra), it is not the case that the appeal “may be rendered nugatory if the stay is not granted”. This is because orders can be made readjusting the parenting arrangements for the child, including the amount of time that she spends with each parent and the circumstances in which the child spends that time with each parent. Nonetheless, I accept that, in the months between this decision and the date that an appeal is likely to be heard, there will be a significant impact on the child’s relationship with her mother as a result of the fact that the child will spend just one (1) day and one (1) night per fortnight with the mother, instead of nine (9) nights per fortnight, being the time that she has been spending living with the mother in accordance with the Orders made in November 2017.
In considering principle 8 set out in Aldridge (supra), it is difficult for a trial judge to make an assessment of the strength of the proposed appeal against their own decision save to note the comments of the Full Court in Aldridge (supra) that, as noted by the Independent Children’s Lawyer, there are challenges for any applicant appealing a discretionary judgment.
Further, the mother will also face challenges in establishing errors in respect to factual findings. This is because:
·The onus is held by the appellant to show that there is some error in the decision under appeal: Allesch v Maunz (2000) 203 CLR 172 at [23]; McDonald v Queensland Police Service [2018] 2 Qd R 612 at [47];
·Appeal courts do not lightly interfere with the findings of fact made by a trial judge “unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’”: Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 at [43];
·There are particular challenges for an appellant in appeals relating to a trial judge’s findings of fact where those findings “are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence”: Lee v Lee (2019) 372 ALR 383 at [55] (“Lee”); and
·Authorites also recognise that the advantage enjoyed by a trial judge extends to “inferences drawn by a trial judge from findings of fact, as distinct from findings of fact”. That advantage by a trial judge “includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts”: FJ & PN Curran Pty Ltd v Almond Investors Land Pty Ltd [2019] VSCA 236 at [203] referring to Lee (supra) at [55].
Principles 9 and 11 as set out by the Full Court in Aldridge (supra) overlap. The significance of those factors was explained in Friscioni & Friscioni [2009] FamCAFC 43 at [55] to [56]:
…it is important to consider the “consequences for a child of granting or refusing a stay”: EJK and TSL (No. 2) [(2006) 35 FamLR 590] per the Full Court (Coleman, May and Boland JJ) and K and B (2006) FLC 93-288 at 32 per the Full Court (Warnick, May and Boland JJ).
In Clemett and Clemett [(1981) FLC 91-013] Nygh J said at 76,175:
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 Trahn and Long (No 2) [[2008] FamCAFC 194] the Full Court included as “principles” the following:
· the desirability of limiting the frequency of any change in a child’s living 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.
It may be that these are not separate factors but that in the context of consideration of the best interests of a child it is desirable to limit the frequency of changes in the living arrangements for a child.
In respect to the issue as to whether the Court should favour maintaining the status quo as to where the child lives, in Sampson & Hartnett [2007] FamCA 732, Coleman J, with whom Thackray and Mushin JJ agreed, drew a distinction between a situation where the child’s living arrangements were “satisfactory in the sense of less than ideal” 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”.
In the context of applying that distinction, in the primary judgment I made the following relevant findings:
·The child was at at an unacceptable risk of risk of emotional and psychological harm if her primary place of residence remained as with the mother;
·That risk also existed if orders were made for the child to spend substantial and significant time with the mother;
·To mitigate against that risk, I made Orders to effect a default position whereby the child would only spend one (1) night per fortnight with the mother unless the mother engaged with appropriate therapy; and
·In the event of the mother engaging in that therapy, I determined that the risk of harm to the child would be so mitigated that it was appropriate for the child to spend five (5) nights per fortnight with the mother together with an equal number of days and nights during school holidays, as well as on special days.
As previously noted, as a result of the mother’s failure to engage in that therapy, the default position will now apply and the child will spend one (1) day and one (1) night per fortnight with the mother. At paragraphs 453 and 454 of my judgment dated 26 March 2020, I noted that the child would experience difficulty in transitioning from living with her mother to living with the father. I noted that an outcome in which the child spends only one (1) night per fortnight “would be extremely difficult for [the child]”.[3]
[3] at [458].
However, in considering the best interests of the child, as against that difficulty that will, unfortunately be experienced by the child, was my finding, as set out at paragraph 460 of the primary judgment, that:
… I am satisfied that the child would suffer such emotional and psychological harm should it be the case that the mother fails to address the extreme level of anxiety from which she suffers concerning the child being in the care of the father and her propensity to engage in dysregulated conduct, including in respect to her inappropriate interactions with the child.
It is with great regret that the mother has failed to take appropriate steps to engage in that therapy in accordance with Order 9 of the Orders made on 26 March 2020.
In my primary judgment I determined that if that outcome occurred then it was in the best interests of the child for the “default position” to be implemented whereby the child only spend one (1) night per fortnight with the mother.
In the context of those findings, I respectfully accept and agree with the submission of the Independent Children’s Lawyer that the child remains at an unacceptable risk of emotional and psychological harm in living with the mother as her primary residence. This is particularly so in circumstances where the mother has failed to engage in appropriate therapy.
That is not, however, the end of my deliberations concerning the best interests of the child.
In terms of principle 11 set out in Aldridge (supra), in the context of the potential impact of the COVID-19 virus, the mother contends that, since the hearing of this matter, the emergence of the COVID-19 pandemic is such that the child, who has had a history of asthma, is now exposed to an unacceptable risk of harm in the event that she changes her place of primary residence from the mother to the father.
In the context of such an intervening event, in K & B (2006) FLC ¶93-288 (Warnick, May and Boland JJ), the Full Court said:
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.
I therefore accept that, in the circumstnaces of this case, it is appropriate to have regard to the fact the the COVID-19 pandemic has been declared in the period since this final hearing date of this matter in November 2019.
In presenting her argument that the intervening circumstances of the COVID-19 pandemic poses a particular risk to the child, the mother refers to what she alleges is a history of inadequate and inappropriate care provided to the child by the father. Those arguments of the mother substantially replicate the arguments that she presented in the primary proceedings. In my judgment, I rejected the mother’s contentions in that respect.[4] Specifically, at paragraph 318 of the primary judgment, I recorded my finding that the change of residence for the child would not expose her “to a greater risk of succumbing to illness, including potentially suffering an asthma attack”.
[4] at [146], [317]-[318].
The mother further contends that the child is exposed to an unacceptable risk as a result of the location of the father’s current residence. As previously noted, the mother contends that the father’s place of residence is close to a nursing home and a school that have both recorded cases of people infected with the COVID-19 virus.
The regrettable fact is that all citizens and residents of Australia are potentially exposed to contracting the COVID-19 virus, particularly if social distancing measures implemented by all governments in Australia are not adhered to. There is no evidence before me that the father will do other than adhere to those appropriate social distancing measures which have been implemented by all Governments around Australia, including the New South Wales Government being the State in which the child lives. These are set out in Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 made under s 7 of the Public Health Act 2010 (NSW) by the Minister for Health and Medical Research.
A useful discussion of the potential impact of the COVID-19 pandemic is set out in the Canadian Family Court of the Superior Court of Justice in the matter of Ribeiro v Wright, 24 March 2020 ONSC 1829; [2020] CarswellOnt 4090. In that decision, Pazaratz J noted, at [6] that, as is the case in Australia, “the health, safety and well-being of children and families remains the court’s foremost consideration during COVID-19”.
His Honour further noted, at [8], that, as in Australia, “directives from government and public health officials make it clear that we are in extraordinary times; and that our daily routines and activities will for the most part have to be suspended, in favour of a strict policy of social distancing and limiting community interactions as much as possible”.
His Honour stated, at [10], that, while many aspects of our social interactions will be placed on hold as a result of the directives from government, “children’s lives – and vitally important family relationships – cannot be placed ‘on hold’ indefinitely without risking serious emotional harm and upset”. His Honour observed that, unless circumstances dictated otherwise, in these “troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever” and that “a blanket policy that children should never leave their primary residence – even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child”.
In this matter, the mother has failed to satisfy me that the child will be at an increased risk of being infected by the COVID-19 virus in the father’s care than the child otherwise would be in the mother’s care. As I noted at paragraph 317 of the primary judgment, the father had a “propensity to intensely focus on detail” and that focus included the requirements of X’s healthcare. Having regard to those findings I am satisfied that the father will comply with his lawful obligation to practice appropriate social distancing measures and also to maintain appropriate domestic hygiene in his household.
Finally, in terms of principle 10 set out in Aldridge (supra), in this matter, I am not in a position to determine the likely date of an appeal. I am satisfied, however, that it is likely that the appeal will be expeditiously pressed by the mother in circumstances where the Court declines her Application for a stay of Orders. I do not have that same confidence if the mother’s Application for a stay is granted.
Summary and conclusion
For the reasons set out in this decision, I dismiss the mother’s Application for a stay of the Orders of the Court made on 26 March 2020.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 7 May 2020.
Associate:
Date: 7 May 2020
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