CLEARY and PEAK

[2018] FCWA 9

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: CLEARY and PEAK [2018] FCWA 9

CORAM: DUNCANSON J

HEARD: 11 JANUARY 2018

DELIVERED : 12 JANUARY 2018

FILE NO/S: PTW 4944 of 2016

BETWEEN: MR CLEARY

Applicant

AND

MS PEAK
Respondent

Catchwords:

PRACTICE AND PROCEDURE - Where the father seeks a stay of orders permitting the mother to relocate the child to [Country A] - Where principles to be applied are considered - Where the application is dismissed

Legislation:

Family Court Act 1997 (WA)

Category: Reportable

Representation:

Counsel:

Applicant: Ms T Farmer

Respondent: Ms P Giles

Solicitors:

Applicant: Western Legal

Respondent: Kim Wilson & Co

Case(s) referred to in judgment(s):

Cape & Cape (2013) FLC 93-549

CDW v LVE (2015) FLC 93-683

Sheldon & Weir (Stay Application) [2011] FamCAFC 5

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

INTRODUCTION

1On 29 December 2017 the father, [Mr Cleary] filed an application in a case seeking an order that various orders made by me on 24 November 2017 be stayed. The mother, [Ms Peak] filed a response on 10 January 2018. The mother seeks an order that the father's application be dismissed. Additionally she seeks the following orders:

…

3The mother return the child to Australia in the event that the appeal by the father against the orders made by the Family Court of Western Australia in Matter No. PTW4944 of 2016 on 24 November 2017 is successful and an order is made for the return of the child to Australia either by the Court of Appeal of the Supreme Court of Western Australia or by a court to which the parenting and relocation proceedings may be remitted for re-hearing.

…

4Forthwith upon the Mother's relocation to [Country A], the Mother do all things necessary to:

(i) Register these orders with the [District Court of Country A];

(ii) If available from the Court, obtain from the Court a Certificate or Declaration of Enforceability in [Country A], or similar document confirming the enforceability of the Orders; and

(iii) Serve upon the father copies of all documents filed in the [District Court of Country A], and all documents issued by that Court, in relation to the registration of the Orders in that Court.

BACKGROUND

2The trial concerning parenting orders in respect of the child [S], who is seven years of age, took place in July 2017. On 24 November 2017 I delivered my reasons and made orders on that day.

3Relevantly those orders provide that the mother have sole parental responsibility for S and that before she makes a decision relating to a long term decision concerning him she notify the father, seek his comments and take them into account and thereafter notify him of the decision she has made. The orders also provide that S live with the mother and that she be permitted to relocate him to [Country A] after 15 January 2018.

4The father has appealed the orders. He has filed a notice of appeal in the Court of Appeal of the Supreme Court of Western Australia.

THE FATHER'S EVIDENCE

5In his affidavit filed contemporaneously with his application in a case the father summarises the grounds contained in his notice of appeal. He seeks a stay of the orders on the basis that if S relocates to Country A and he is successful, significant upheaval would be caused to S.

6The father deposes the mother is well able to maintain her current living arrangements in Perth pending the hearing of the appeal. He says it is appropriate that there be as little disruption to S and his life pending the appeal. The father offers to comply with all deadlines in relation to the appeal process and ensure that it progresses as expeditiously as possible.

7On 9 January 2018 the father filed a further affidavit in which he offers to continue to financially support the mother if the stay is granted together with payment for S's school fees, private health insurance and swimming fees. He also offers to provide her with the use of a vehicle.

8The father seeks to have S continue spending time with him and does not wish to have his schooling and his enjoyment of family and friends disrupted.

THE MOTHER'S EVIDENCE

9In her affidavit filed contemporaneously with her response the mother deposes that she has given notice to her landlord that she intends to vacate her flat by 17 January 2018. She has given notice to [School A] that S will not be returning and similarly to his occupational therapist that he will not be attending after January.

10The mother has booked flights from Perth to [Town C] to travel on 18 January 2018. She has registered S with her previous general practitioner in [Town N] and enrolled him at [School B] which is a short distance from her mother's home. She has sold her car and various items of furniture. She does not know if S can return to School A if the stay application is granted although counsel for the father confirmed that he can. She will be able to continue living in her present accommodation on a week to week basis if she is required to remain in Perth. The mother deposes as to the father's failure to pay for S's swimming lessons and says he has been late in paying financial support for her and also S's school fees. The mother is reliant on the father's payments and finds it stressful when they are not paid on time or in full.

11The mother deposes she has complied with court orders for S to spend time with the father and communicate with him. She further deposes to her intention to register the orders of this Court with the District Court in Country A. She undertakes to comply with any order to return S to Western Australia.

12The mother has told S he is to be relocating to Country A and says he is looking forward to doing so. She says it will not be possible to maintain her current living arrangements in Perth if she is required to remain and the upheaval and disruption for S will be worse if she is required to do so.

THE LEGAL PRINCIPLES

13In Cape & Cape (2013) FLC 93-549 the Full Court set out the principles which govern the determination of a stay application in relation to orders concerning a child when it said at paragraph 21:

At the commencement of her reasons for judgment in relation to her orders made on 5 July 2013, her Honour set out in the following accurate terms the principles which govern the determination of a stay application in relation to orders concerning a child:

•the mere filing of an appeal is insufficient to ground a stay;

•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 “special” or “exceptional” circumstances;

•a person who has obtained a judgment is entitled to the benefit of that judgment;

•the person who has obtained a judgment is entitled to presume the judgment is correct;

•the bona fides of the applicant;

•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;

•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 the stay;

•some preliminary assessment of the strength of the proposed appeal — whether the appellant has an arguable case;

•the desirability of limiting the frequency of any change in a child’s living arrangements;

•the period of time in which the appeal can be heard and whether existing satisfactory 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.

14Further, at [23] the Full Court stated, in connection with the application of these principles that the authorities stress the discretionary nature of an application for a stay.

DISCUSSION

15It is not in dispute that the mere filing of an appeal is insufficient to ground a stay. It is also not in dispute that the onus to establish a proper basis for the stay is on the father however, it is not necessary for him to demonstrate "special" or "exceptional" circumstances.

16In terms of the judgment the mother has permission to relocate S to Country A. She is entitled to the benefit of that judgment and to assume that my decision was correct. She deposes to having made arrangements to relocate to Country A including relinquishing her accommodation, disposing of goods, arranging flights and giving notice to S's school. It was reasonable to make these arrangements.

17The mother questions the father's bona fides pointing to him having told S that he will move to Country A and pointing to the delay in filing his application with the Court of Appeal. Counsel for the father said he has not discussed the move in detail with S. It is not in dispute that S knows he is moving to Country A. Counsel for the father explained there was some confusion as to the appropriate court in which to file the notice of appeal and that was the reason for the late filing.

18I accept that the father is bona fide in respect of the appeal.

19Neither party proposes that the stay should be granted on terms which are fair to each of the parties. The father seeks the stay for the reasons deposed to. The mother opposes it also for reasons deposed to.

20I must weigh the risk that the appeal may be rendered nugatory if a stay is not granted. The appeal would only be nugatory if it were not possible to restore the existing parenting arrangements. If the appeal is successful the mother is required to return S to Australia, those parenting arrangements can be restored.

21I found that S had a close and loving relationship with both of his parents and there is no reason to think that will change. The father's appeal would not be rendered nugatory if the stay were not granted.

22As to the strength of the proposed appeal the father's grounds are summarised in his said affidavit. The mother submits that the appeal has little prospect of success describing it as "extremely weak". The father's appeal depends to an extent on a consideration of the weight given to various matters including the ability of the mother to promote the relationship of S with the father and to comply with spend time orders.

23In Sheldon & Weir (Stay Application) [2011] FamCAFC 5 the Full Court said at [27]:

As we endeavoured to explain to the father when he was before us, it is impossible, at least in most cases, for a Judge in the position of her Honour, or an appellate court in our position, to be able in the context of proceedings relating to a stay of orders pending an appeal against those orders, to determine whether the appeal will ultimately be successful. …

24In my assessment based on my knowledge of the evidence and my reasons, I do not consider the proposed appeal to be a strong one, however I have already found that the appeal is bona fide. The father has an arguable case.

25It is desirable to limit the frequency of any change in S's living arrangements. It cannot be said that those arrangements are at present unsatisfactory in that I found that he is happy with both parents and has a close and loving relationship with both. The single expert interpreted S's views as him being secure with the mother, but enjoying his time with the father.

26I also found that the mother, S's primary carer was far from settled and that she had a number of psychological difficulties arising from her relationship with the father which involved significant family violence. I also found that she has an "ongoing fear" of the father and her dependence upon him.

27At paragraph 194 of my reasons I found:

The parties' relationship was one characterised by severe family violence. The mother has been left traumatised, with a sense of entrapment aggravated by a financial dependency upon the father.

28At paragraph 204 and 205 of my reasons I found as follows:

Having weighed all of the factors carefully I have concluded that the mother should have permission to relocate [S] to [Country A]. I consider this to be in [S's] best interests. It is likely that the relocation will enhance the mother's parenting of [S] and her own happiness is likely to have an impact positively upon him.

I have carefully considered the impact on [S] of a separation from the father and also the paternal relatives with whom his relationship is important. I am satisfied that [S's] close and loving relationship with the father can be maintained from a distance and that the orders proposed by the mother for [S] to spend time with the father are those which will enable this to happen.

29Overall I considered that the effect upon S of a move to Country A would be beneficial to him and that he was likely to gain from the mother's security and happiness.

30As set out above the mother has made arrangements to relinquish her ties in Australia and has made arrangements and future plans for S's relocation to Country A. In the event that I do not stay the orders, S will travel to Country A and continue to live with the mother who will remain his primary carer. In that sense his arrangements will not change. I accept he would not at least initially have direct contact with the father, although electronic communication can take place. If the stay is not granted and the appeal is successful it will be necessary for S to be returned to Perth. In that event he will return to much that is familiar to him including the paternal family. Although there will be some disruption, a period of time in Country A could also be seen as an opportunity to have an extended period of living abroad in the company of maternal relatives.

31The mother says S has told her he is looking forward to going to Country A, a place he knows with people he loves. She says he is excited to be going to a different school mostly because he will get to travel on a school bus.

32There will also be disruption for S if he is required to remain in Perth in circumstances where the mother has taken steps to relinquish her accommodation. Although she is able to remain in her accommodation on a week to week basis as the landlord has not yet secured a new tenant, there is a lack of stability in this respect. The mother has disposed of household goods and her car although the father will make a car available for her use. The granting of the stay would therefore cause some disruption to S' living arrangements as well as uncertainty and possibly some disappointment. In the event that the stay is refused, he will travel to Country A in accordance with his expectations where he and the mother will receive the support of her family while they are there.

33The orders I made permitting the mother to relocate S to Country A were orders which I considered to be in his best interests for the reasons given. I take this into account when considering the desirability of changes in S's living arrangements.

34The father has filed a Notice of Appeal and an application for the extension of time to file that Notice in the Court of Appeal. Directions have been made for him to file further documents by 14 February 2018 and thereafter responding documents will have to be filed. It is not known when the matter will be set down for the appeal to be heard. The mother submits there are significant jurisdictional issues arising out of the decision in CDW v LVE (2015) FLC 93-683 which will require a determination. She submits there could be a significant delay before the appeal is finally determined.

35Having regard to my orders and the reasons therefore, and also having regard to S's present circumstances, I consider it would be in his best interests to relocate to Country A pending the outcome of the appeal.

36Having carefully considered the evidence, and the submissions, and balanced the matters I am required to consider, in my discretion I decline to grant the stay and I will order accordingly. Appropriate orders are sought to compel S's return if the appeal is successful and those orders too will be made.

THE ORDERS

1The Form 2 Application filed by the Applicant, [MR CLEARY] be dismissed.

2The Respondent, [MS PEAK] return the child, [S] born [in] 2010 to Australia in the event that the appeal by the Applicant against the orders made by the Family Court of Western Australia in Matter No. PTW4944 of 2016 on 24 November 2017 is successful and an order is made for the return of the child to Australia either by the Court of Appeal of the Supreme Court of Western Australia or by a court to which the parenting and relocation proceedings may be remitted for re-hearing.

3Forthwith upon the Respondent's relocation to [Country A], the Respondent do all things necessary to:

(a) register these orders with the [District Court of Country A];

(b) if available from the court, obtain from the court a Certificate or Declaration of Enforceability in [Country A], or similar document confirming the enforceability of these orders; and

(c) serve upon the Applicant a copy of all documents filed in the [District Court of Country A], and all documents issued by that court, in relation to the registration of these orders in that court.

I certify that the preceding [36] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate