Coleman & Hindle & Anor (No 3)

[2009] FamCA 1073

FAMILY COURT OF AUSTRALIA

COLEMAN & HINDLE AND ANOR (NO. 3) [2009] FamCA 1073

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings

Family Law Act 1975 (Cth) s 69ZK

Clemett & Clemett (1981) FLC 91-013
CSN and JBN (1998) FamCA 1765

APPLICANT: Ms Coleman

1^ST RESPONDENT: Ms Hindle

2^nd RESPONDENT: Mr Hindle

3^rd RESPONDENT: Department of Communities (Child Safety Services)

INTERVENOR: Mr Coleman

INDEPENDENT CHILDREN’S LAWYER: Mr Carter

FILE NUMBER: BRC 5431 of 2008

DATE DELIVERED: 11 November 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 11 November 2009

REPRESENTATION

APPLICANT: In person

SOLICITOR FOR THE 1^ST RESPONDENT: Ms Hewitt

SOLICITORS FOR THE 1^st RESPONDENT: Bridges Family Law Specialists

SECOND RESPONDENT In person

COUNSEL FOR THE 3^rd RESPONDENT: Mr Selfridge

SOLICITOR FOR THE 3^rd RESPONDENT: Crown Law

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Carter

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: Carter Farquar Lawyers

Orders

1. The Application in a Case filed by the Applicant on 3 November 2009 is dismissed.

2. The transcript of today be expedited and provided to the parties at no cost.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5431 of 2008

MS COLEMAN

Applicant Maternal Grandmother

And

MS HINDLE

1^st Respondent Mother

And

MR HINDLE

2^nd Respondent Father

And

DEPARTMENT OF COMMUNIITES (CHILD SAFETY SERVICES)

3^rd Respondent

And

MR COLEMAN

Intervener Maternal Grandfather

EX TEMPORE REASONS FOR JUDGMENT

1. By an Application in a Case filed on 3 November 2009 the grandmother seeks a number of orders, specifically an order that:

   The court places a “stay of proceedings” on the order of Murphy J on 23 October 2009 for an interim custody order for the first and second respondents until the hearing of appeal NA 42 of 2008 on 18 November 2009.

2. That application is supported by four affidavits, two of which were filed on 3 November 2009 and the other two of which were filed on 9 November and yesterday, 10 November.

3. Some of those affidavits were indicated as not having been received by some, at least, of the respondents.  Notwithstanding that, none of the respondents objected to the grandmother relying upon any of those affidavits and they were all before me.

4. The basis of the application for stay is a little difficult to discern, at least to me.  For present purposes some short background should be provided.

5. Events relevant to the parenting applications commence with an order placing two children now aged 13 and almost nine in the care of the applicant grandmother in 2002.

6. In February 2008, the Department of Child Safety took steps that brought the children into the possession of the Department.  Subsequently, orders were made in a State court pursuant to a State child welfare law.  Those orders placed the children into the guardianship of the Director of Child Safety.  Subsequently, the Director determined to place those children into the care of their mother.

7. The children have been in the care of their mother ever since.  That is, they have been in the care of their mother for approaching two years.  The children are seeing their father, Mr Hindle, who is the respondent to these applications, by agreement between the parents.  He is seeing them, I gather, with regularity pursuant to that agreement.  The grandparents are not seeing the children and have not done so for a considerable period of time.

8. The order obtained pursuant to the state child welfare law is due to expire today.

9. In proceedings that were held over two days before me on 22 and 23 October 2009 some 15 applications in total were dealt with.  Among those applications was an application on the part of the mother for an order that the children should come into her care, as it were, upon the expiration of the order made under state child welfare law.

10. Her application was supported by the Department of Child Safety who, through their counsel, indicated that if that was to be the outcome then no further child welfare law proceedings would be continued.  The application was also supported by the Independent Children’s Lawyer and by the children’s father, Mr Hindle.

11. At that time, although seeking to emphasise that the department was not, as it were, “holding a gun” to the head of the court, Mr Selfridge, counsel for the Department nevertheless indicated in clear terms that, in the event that the court was minded to place the children into the care of the maternal grandparents or, indeed, to provide for time between the children and those grandparents, action would be taken pursuant to state law.  That action would have encompassed an application for the continuation of the order due to expire today.

12. It also needs to be observed that the order made initially under state law in February 2008 has been the subject of extensive litigation in the courts of Queensland.  Ultimately, an appeal was heard by the Queensland Court of Appeal and the grandmother has made an application for special leave to the High Court against that decision.

13. That application for special leave is yet to be heard, although the maternal grandmother indicated to me on the last occasion that she anticipates it being heard fairly soon.  In very simple terms, that application for special leave asserts that the actions of the Department in removing the children in the first instance were invalid and that the Queensland Court of Appeal’s decision rejecting that contention is wrong.

14. I made orders and delivered reasons earlier in this matter on 29 April 2009.  The grandmother has appealed those orders.  That appeal is due to be heard on 18 November, that is to say, a week from today.

15. During the course of the proceedings on 22 and 23 October, the grandmother indicated, on a number of occasions, that she intended to appeal the orders made by me on that day.  That indication was given during the course of the proceedings, that is to say, prior to some, at least, of the orders having been made.  Ultimately, the grandmother did, in fact, file a Notice of Appeal in respect of those orders on 3 November 2009.

16. The Notice of Appeal contains 10 grounds.  All of the 10 grounds are preceded by the words “his Honour erred at law and showed both ‘perceived biases’ towards the applicant, thereby denying both the applicant and various other named parties various asserted rights and remedies”.  Whilst, as expressed, the grounds of appeal might be seen to be confined to an appeal based essentially on an assertion of bias, it may be that the Full Court regards those grounds as encompassing broader assertions with respect to error.

17. I should indicate that, in the orders I made on 23 October 2009, I anticipated, as a result of what the grandmother said, the prospects of an appeal and, among other orders made that day, I ordered that the time for the filing of any Notice of Appeal against those orders commence from the date the orders issued from chambers, (as evidenced on the face of the orders, and that a transcript of the proceedings on those two days be prepared and a copy provided free of charge to the parties.  

18. I further order this:

    It is respectfully directed that, if at all possible, any appeal from any or all of these orders be consolidated with the appeal by the applicant grandmother currently listed to be heard by the Full Court in sittings commencing on 18 November 2009 and that any appeal from these orders be heard at the same time as that earlier appeal.

19. As I understand it from the grandmother, the Full Court will hear and determine the appeal against the orders made by me on 23 October 2009 at the same time as the appeal against the orders made by me on 29 April 2009.

20. That is, appeals against the orders made by me a couple of weeks ago, together with the orders made some six months or more ago, will be heard in a week’s time.

21. I will assume for the purposes of this application that the appeal by the grandmother is made bona fide and not made for the purposes of effecting any delay, as each of those expressions have been used in the cases concerning stays pending appeal.

22. In that respect it is of note that the grandmother (and, subsequently, the grandfather) relied, in support of this application, on many decided authorities outlining the principles applicable to applications for stay pending appeal.  Many of those authorities refer to stays pending appeal to the High Court.

23. I have no power to grant a stay pending an appeal to the High Court.  That power vests in the Full Court of this court.

24. Although it was not, by any means, entirely clear, I did not take the grandmother to assert that she sought a stay, pending the appeal to the High Court, although the grandmother was at pains to emphasise that considerations relevant to that appeal were relevant to the current application for stay.  The effect of what was said, was, I think, that the unheard application for special leave to the High Court was relevant to the determination of this application.  For reasons which will emerge, I disagree.

25. It is important to record specifically that the parenting order I made on 23 October 2009 was preceded by these words:

    Upon the cessation of the order made under a state child welfare law currently applicable in respect of the children [named and date of births] the following orders shall take effect.

26. That preface was obviously included to take account of the provisions of section 69ZK of the Act.  The section precludes this court from making orders in circumstances where a child welfare law is in operation. 

27. I record that I am aware of the Full Court authorities which bind me, and which outline the principles in relation to a stay pending an appeal.  Specifically, I make reference to the seminal judgment of Nygh J in Clemett & Clemett (1981) FLC 91-013, and, more recently, the decision of the Full Court in CSN and JBN (1998) FamCA 1765.

28. Relevant to those principles, a number of matters must be observed (proceeding on the assumption, as I have earlier indicated, that this appeal is made bona fide and not for the purposes of effecting any delay). 

29. First, this is an appeal or rather, the grandmother’s appeal is an appeal against an interlocutory order.  Specific principles apply with respect to appeals from such orders.

30. Secondly, the appeal is against orders which have a complex background, some of which I have alluded to in these reasons, and which was alluded to in the reasons delivered earlier on 29 April 2009, and again on 23 October 2009.

31. Third, the appeal is due to be heard next Wednesday, that is in a week’s time.

32. Fourthly, and most significantly of all in my view, the appeal, if successful, will in fact, (ironically it might be thought), be rendered more efficacious if a stay is not granted.  Currently, if my orders are to take effect and the Department acts in the manner as it earlier indicated, the order will come into practical effect such that there will be no child welfare law in respect of these children, and they will be placed into the care of their mother pursuant to an interim order made by me.  If the appeal is successful and if the Full Court either re-exercises the discretion for itself or, indeed, if the Full Court remits the matter to be heard by a judge other than me, there will be no impediment created by section 69ZK if no stay is ordered.

33. The fifth reason relevant to the application for stay in this case is the corollary of that just given.  The State child welfare law expires today.  The Department has indicated plainly that it intends to take action pursuant to a state child welfare law in that event.  There may be an argument that the appeal cannot proceed - it may, arguably, be a proceeding “in relation to a child” within the meaning of s 69ZK, given the nature of the order appealed against. 

34. Even if that is wrong and there is no impediment to the appeal proceeding, for so long as a child welfare law exists, there will be an impediment to the Full Court re-exercising the discretion to the extent that new parenting orders are made by it, or, similarly, if the matter is to be reheard by a judge other than me if remitted.

35. Accordingly, although it may seem ironic and to the grandmother, at least, counterintuitive, in fact, the orders and her position in respect of the orders, in terms of them being heard by this court, are rendered much more efficacious by a stay not being granted.

36. In any event, the other principles and considerations relevant to the granting of a stay, in my view, point clearly to a stay being refused.

37. For those reasons, the application for stay is refused.  I order formally, accordingly.

38. In the event that the grandmother determines an appeal against the orders just made, it seems to me, given the small time frame which is available to her, that as a matter of practical reality, she will need to make an oral application to the Full Court.

39. However, in contemplating the grandmother filing a Notice of Appeal in respect of the orders just made by me, I order that the transcription of these reasons be expedited, and that a transcript of today’s proceedings be prepared, expeditiously and provided free of charge to all parties.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate: 

Date:  13 November 2009