Chin & Robinson (No. 2)

[2007] FamCA 1513

FAMILY COURT OF AUSTRALIA

CHIN & ROBINSON (NO. 2) [2007] FamCA 1513

FAMILY LAW – STAY OF PROCEEDINGS – Pending application for leave to appeal from interlocutory order – Applicable principles

FAMILY LAW – CHILDREN – Interim parenting orders – Whether in the child’s best interests to reside with the mother in Queensland – School enrolment of the child or home schooling

Family Law Act 1975 (Cth)

APPLICANT: Mr Chin

RESPONDENT: Ms Robinson

FILE NUMBER: SYF 2987 of 2004

DATE DELIVERED: 20 December 2007

PLACE DELIVERED: Sydney

EX – TEMPORE JUDGMENT OF: The Hon. Justice Rose

HEARING DATE:	20 December 2007
ORDERS:	20 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Thomas

SOLICITOR FOR THE APPLICANT: Ross A Clarke & Associates

COUNSEL FOR THE RESPONDENT	Mr Tockar with Mr Karras
SOLICITOR FOR THE RESPONDENT	Karras Partners

Orders

Stay of proceedings

1. That the application of the father for a stay of proceedings filed 17 December 2007 is dismissed.

Parenting Orders

1. That the mother is restrained from changing the place of residence of the child from her current Sydney premises or alternatively other Sydney premises in one or other of the suburbs referred to by her in her affidavit sworn 19 December 2007 upon giving the father seven [7] days written notice.

2. That the parties enrol the child to commence school at the kindergarten level in a public school as agreed upon between the parties in writing or failing agreement in the suburb in which the mother will reside in Sydney.

3. That the mother may reside with the child in Queensland during the current school holiday period subject to the child spending periods of time with the father in accordance with the Orders made 1 February 2006 and she also may reside with the child in Queensland following completion of school on the Friday to the following Sunday evening PROVIDED THAT such period does not interfere with the periods of time that the father is entitled to spend with the child in accordance with the Orders made 1 February 2006.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

File number:  SYF 2987 of 2004

MR CHIN

Applicant

And

MS ROBINSON

Respondent

EX- TEMPORE REASONS FOR JUDGMENT

Introduction

1. In these proceedings the father makes two applications each of which were filed on 17^th December 2007. 

2. The first of those applications is one in which he seeks a stay of proceedings pending determination of his application for leave to appeal, and if successful, his appeal from orders that I made on 26^th November 2007.  The orders in respect of which he seeks to appeal, if leave is granted, are Orders 1 to 3 made on 26^th November 2007.  Those orders provide for the family consultant identified in the order to prepare a family report in respect of the child of the parties born in October 2002, who I shall refer to as “the child”, that Ms G the family consultant expedite the preparation of the report and that the parties promptly comply with the interview process and use their best endeavours to ensure that their respective partners and the child are available for such interviews.

3. Apart from the stay application, the father also filed an application on 17^th December 2007 in which he sought an interim injunction restraining the mother from causing a change in the place of residence of the child on certain terms and requiring the parties to enrol the child at a school in the Northern Beaches area of Sydney.

History of the matter

1. The brief history of the matter relevant to the applications is as follows.

2. On 15^th October 2007 I conducted Day 1 of the Less Adversarial Trial procedure for the hearing between the parties.  At the conclusion of that hearing I made an order for the parties’ legal representatives to forward to my associate by 5.00pm the next day their respective proposals for counselling to improve communication between the parties.  I noted that counsel had made submissions to me in relation to the appointment of either Dr W psychiatrist, or Ms G family consultant, or another single joint expert to be appointed for the purpose of preparing the family report.  I did not determine that issue on that occasion as counsel for the father asked me to read past reports of Dr W which he had prepared in 2004, 2005 and 8^th January 2006.  I stated that I would do that, there not being opposition to that approach, and that I would make orders in Chambers once I had had the opportunity to consider that further material.

3. On 26^th November 2007 I made orders in Chambers which included Orders 1 to 3 which I have earlier identified.  I also provided various notations to which I will subsequently refer.

4. On 4^th December 2007 the matter was listed before me at my direction so as to give the parties an opportunity to make submissions on the question of change of family consultant, in circumstances where a change would enable interviews to take place this month and a report to be available this month as well.  That was by way of contrast to Ms G’s availability for interviews being at the earliest 31^st January 2008 with her report expected to be available mid-February 2008.

5. The matter was stood over by me to the next day as counsel for the father informed me that he was without instructions.

6. On 5^th December 2007 both parties were represented and an order was sought by consent that there not be a change of family consultant for the purpose of preparation of the report, notwithstanding that if that had taken place the availability of a report would have occurred sooner than if Ms G prepared it.  Accordingly, an order was made by consent which had the effect of ensuring that the previous order for preparation of a report by Ms G was put into effect.

7. I will proceed first to determine the stay application.

The stay application

1. It is clear from the Rules that the filing of an application for leave to appeal does not result in a stay of proceedings.

2. The principles upon which a stay may be ordered are well established and I will briefly refer to them.

3. An order for a stay is an exercise of the Court’s discretionary power.  Amongst the matters that I should consider, where relevant, are that the stay should not be granted as a matter of course, but only when appropriate.  In addition, to deny a stay will render a successful appeal nugatory or make it impractical to restore the present situation. Hardship that may be suffered by each of the parties is required to be considered and weighed, and last but far from least, the grounds and merits of the proposed appeal.  I should add here that the question of delay in the filing of an application for a stay does not arise, nor were any submissions made to suggest that the father lacked bona fides in his application for a stay.

4. Turning now to those matters.

5. The matter that I will first address is the issue of the merits of the application for leave to appeal.

6. In that regard no submissions were made to me by counsel for the applicant in relation to the principles that are relevant to the granting of leave to appeal from an interlocutory order.  Notwithstanding, I will refer to those principles.

7. Those principles are also well established as a result of the High Court’s judgment in Adam P Brown Male Fashions Pty Ltd against Phillip Morris Incorporated and in subsequent judgments of the Full Court of this Court.  In Adam P Brown Male Fashions Pty Ltd against Phillip Morris Incorporated,[1] particularly the majority judgment, their Honours referred to the relevance of and definition of a matter of practice and procedure.  In that regard they provided by way of reference a definition from Salmon on Jurisprudence[2].  In doing so they referred to the injunctive order, the subject of their consideration, as being an interlocutory order relating to a matter of practice and procedure.

   [1] (1981) 148 CLR 170.

   [2] Ibid at 176-177.

8. The order that I made, the subject of the proposed appeal, if leave is granted, is clearly in my view a matter of practice and procedure because it “regulates the conduct and relations of Courts and litigants in respect of the litigation itself as opposed to the conduct and relations in respect of the matters litigated.”[3]  Indeed, counsel for the father did not make a submission contrary to that conclusion.  Rather, he emphasised the orders have important consequences for the continued litigation between the parties.

   [3] Ibid.

9. The High Court proceeded to hold that it would normally be reluctant to review an interlocutory decree concerning practice or procedure unless it results in a substantial injustice to a party and an error of principle may also need to be considered. 

10. There have been a number of judgments of the Full Court of this Court considering the principles for leave to appeal from an interlocutory order.  The Full Court of course is bound by the High Court, as I am.  Amongst those cases include Rutherford and Rutherford[4] and more recently Bain Pacific Associations and Ors against Kelly and Ors[5] and Alsasi and the Alsasi Group[6].  The ratio that is extracted from those judgments is that an applicant needs to show that there has been an error of principle and/or a substantial injustice to one of the parties, or that the issue is one of general importance.

    [4] (1991) FLC 92-255.

    [5] (2006) FLC 93-270.

    [6] (2006) FLC 93-271

11. I was informed by counsel for the father that the material in support of the Application for Leave to Appeal is to be found in the affidavit of the father’s solicitor sworn 13^th December 2007. I have read that affidavit and I have concluded that that affidavit does not address any of the principles that are relevant for the purpose of determining leave to appeal from an interlocutory order.

12. Indeed, paragraph 7 of that affidavit refers to the orders of 26^th November 2007 as being orders that were not made by consent and “the notation which appears on the face of the orders is a ground of appeal.”

13. With respect to the father’s solicitor I find that description to be mischievous to say the least.  The heading to the subject orders is quite clearly in error.  The sealed copy of the orders contains the words “date of consent orders in chambers.”  However, given the content of the orders that were made, and the submissions which were previously made, the parties being represented by the same legal representatives throughout, it must have been obvious to the legal representatives for the parties that the orders that were made were indeed not by consent.  The only reference to consent is Notation C which refers to a notation that I had made by consent on 15^th October 2007 whereby I was to determine in Chambers the interlocutory issue of whether Dr W psychiatrist, or Ms G family consultant, was to be appointed as the single joint expert.  That must have been clearly known to the father’s solicitor and it is disappointing to say the least that he was prepared to swear an affidavit containing the unfortunate description to which I have referred as a proposed ground of appeal.

14. So far as the other relevant matters are concerned, in my view the denial of a stay would not render a possible successful appeal nugatory.  In the event that leave to appeal is granted and a subsequent appeal is successful, it will be still open for an order to be made, presumably by the Full Court, that a family report be prepared by Dr W. That is the order that the father has sought.  Consequently such an order can be made.  What would have been lost in the meantime perhaps is the time taken in the preparation of a family report by the family consultant.  That report may indeed be of benefit to Dr W should he ultimately be required to prepare a report. In that event, as I have already emphasised, the denial of a stay would not render the appeal nugatory for the reasons that I have expressed.

15. Neither counsel addressed me in relation to hardship other than inferentially referring to the time and effort that might be lost in the event of the family consultant being left to prepare a report.

16. In the circumstances I have concluded that the application for a stay will be dismissed.

17. The reasons briefly are that on the material before me there is no substantial issue to be raised on the application for leave to appeal.  The principles which guide the considerations for an application for leave to appeal were not addressed, and in my view, understandably, as there is nothing of substance that was put before me which would attract the issue that there had been an error of principle and/or a substantial injustice.  At the heart of the application, from a realistic viewpoint, is that my discretionary power was exercised in a way that was not favourable to the father’s case and the submissions that were made to me on his behalf.  I have dealt with that matter at some length in reasons for judgment which were published on 17^th December 2007.  As I referred to in that judgment, I had not initially intended to publish reasons on the basis that I stated, but following a written request from the solicitor for the father, I proceeded to do so.

18. There has been a long line of authorities which cautions against the interference with the exercise of discretion by an Intermediate Court of Appeal commencing with the well known case of House v R[7] and I do not need to refer to that in any further detail.

    [7] (1936) 55 C.L.R. 499

The application for injunctive relief and interim parenting orders

1. I now turn to the application of the father for the injunctive relief and interim parenting orders to which I have earlier referred.

2. It is common ground that when the trial commenced before me on 15^th October 2007 the issue of relocation in terms of the best interests of the child loomed large.  Indeed, as counsel informed me on that occasion and again today there had been previous proceedings between the parties in which the mother had sought parenting orders which would enable her to relocate with the child.

3. The mother again makes that application.  That application is made in the circumstances whereby she has married and her husband is now living in Brisbane to further his career as a professional sportsman.

4. The mother has been travelling between Queensland and Sydney so as to maintain her new family unit with her husband and the child, as well as ensuring that the father is able to spend periods of time with the child in accordance with the orders made by consent on 1^st February 2006 (“the current orders”).

5. These issues are not without difficulty.  The father’s case is that the child has now some expectation, fed by actions of the mother, of attending school in Queensland and living there.  He is naturally concerned that an important issue in this case may well be pre-empted by the child becoming settled in Queensland and that his case in terms of the best interests of the child will have become circumscribed by events.  There is no issue that he has continued to spend periods of time in accordance with the current parenting orders.

6. The mother’s case is that she understandably seeks to maintain her family unit with her husband and the child in a realistic sense by spending the major part of each week in the home that she and her husband are establishing, and that in effect as she is the primary carer and all other circumstances of living in Queensland are positive, the consequence of her proposal in that regard is in the best interests of the child.

7. The mother’s case also is that she is alive to the possible destabilising effect upon the child of attending school either in Sydney or in Queensland, and then depending upon the orders that are ultimately made, the child having to move and be disrupted in terms of school and the friends that she may have made.

8. In addition, the mother seeks to be able to move from her current address on the Northern Beaches to live in an inner suburb of Sydney as it will reduce the travelling time to and from the Sydney airport as well as being considerably less expensive so far as rent is concerned.

9. The father opposes that approach because he lives on the Northern Beaches and considers that a move by the mother with the child to a different suburb in Sydney as proposed by her will represent a further obstacle to his involvement with the child and particularly the child’s schooling.

10. In my view there is much substance in the proposals of each of the parties.  So far as the relevant considerations are concerned there is no issue as raised on the evidence before me of the child having anything other than a loving relationship with each of her parents and their respective partners.  There is no issue in respect of the parties’ respective capacities to provide for all of the needs of the child, nor in relation to parental attitude.  Issues are raised so far as the likely effect on the child of living frequently in Sydney or in the other alternatives to which I have referred.

11. The views of the child are the subject of conflicting evidence in the affidavits.  In those circumstances, there is no weight that I can give in the absence of independent evidence of the child’s views and the circumstances in which those views may have been formed or influenced.

12. I have concluded that on an interim basis it is in the best interests of the child to continue to live with the mother, but principally in Sydney, attending school either in the immediate area where the mother is currently residing in Sydney, or otherwise in one of the inner suburbs of Sydney to which I have referred.

13. My reasons are as follows.

14. The issue of the mother being able to relocate with the child to Queensland is a very important issue in the part-heard proceedings.  The potential consequences so far as the child is concerned, as well as the parties, are very significant.  If the mother is able to relocate with the child to Queensland it may potentially have an adverse effect upon the periods of time that the father is able to spend with the child on the assumption that he continues living in Sydney.

15. On the other hand, there may be benefits to the child living in a settled and happy environment with the mother and her husband in Queensland.

16. I also take into account that if the mother is restrained from relocating with the child to Queensland, whilst the father’s periods of time to be spent with the child are unlikely to be reduced, the child may then be living with a parent who is unhappy and unable to provide the optimum quality parenting that the child should receive.

17. These difficult issues are a consequence for consideration in many “relocation” cases.

18. However, this matter is being determined on an interim basis only.  In my view, the most important matters that have guided me in my consideration are that the child should continue to have the benefit of stability in the Sydney environment, whereby she will be able to see the father with minimum of travel, albeit that the child is an experienced traveller, and attend school from first term 2008 notwithstanding, that potentially that schooling may be disrupted if the wife’s application for final orders is successful.  The child attending school will enable her to not only obtain the benefits of education in the conventional way, but as counsel for the father emphasised, introduce her at the normal time for a child of her age to the benefits of social interaction with children of her own age in a skilled environment which potentially can only assist her for the future.

19. I have not lost sight of the mother’s evidence that she would provide home schooling for the child and has made appropriate enquiries in that regard.  However, that is a matter which I do not attach as much weight to compared to the other benefits of conventional schooling to which I have referred.

20. I have also given much weight to the fact that the pending proceedings involve the important issue of relocation.  Potentially should the child become settled in both Queensland and Sydney that will create yet a further difficult aspect of the proceedings.

1. In addition, it is understandably perceived by the father in the circumstances of this case and against the background where the previous parenting proceedings also involved an issue of relocation, as either a direct or indirect attempt to pre-empt the ultimate difficult issue of relocation which I must determine. 

2. It is understandable that parents in parenting proceedings suffer from anxiety and stress. That aspect becomes exacerbated when there is a potential for a child to live a considerable distance away from where the child has been living, as the parent who remains behind is left in the position of perhaps not being able to further his or her relationship with the child to the optimum degree.

3. It is not of assistance to that party, and therefore not to the child, for a parent who is otherwise a loving parent to continue to be engaged in litigation with an expectation that issues have been minimised.  It is important to ensure that the issues that do need to be determined have not been influenced, even without any malice, in a way which may predetermine the issues for the final hearing.

4. It follows from those reasons that I will also make orders that the child attend kindergarten at the appropriate public school in the Northern Beaches area or in an inner suburb of Sydney, in the event of the mother proceeding with her proposal to move her Sydney premises to such a suburb.

5. In the mother’s response dated 19^th December 2007 the mother sought a variation of the current parenting orders so that the period of time that the father might spend with the time be varied so that it occur each alternate weekend from 3.00pm Friday until 9.00am the following Tuesday morning.  The basis of that application appears to be that the father does not lose time with the child calculated on a fortnightly basis and yet frees up, as it were, the intervening period for the child living with the mother, presumably in Queensland.

6. In addition, the mother sought an interim order that she be permitted to relocate with the child to Queensland.

7. So far as the latter is concerned, counsel for the mother submitted that that application was made on instructions, as one might expect, but he did not have any further submissions to make.  I will not make that last order for the reasons that I have previously given touching upon the best interests of the child should she be permitted to live with the mother in Queensland as the mother proposed, as it would result in pre-empting an important issue to be determined at the final hearing.

8. So far as the alternate weekend periods are concerned, whilst the father would not lose time on a fortnightly basis, nonetheless the frequency of the child being in his care during such a fortnight is reduced.  The child is still very young, being 5 years of age, and doing the best I can in the absence of a family report, it may well be that it is in the child’s best interests to maintain the frequency with which she sees the father in accordance with the current orders which, as previously referred to, were consented to by the parties.  Presumably, at that time they considered it to be in the best interests of the child for her to spend the periods of time that currently take place in accordance with those orders.  I am not persuaded that it is in the child’s best interests to vary those orders.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate

Dated: 20 December 2007

see also Norbis v Norbis (1986) FLC 91-712 at 75,178 per Brennan J.