CSN v JBN

[1998] FamCA 1766

[1998] FamCA 1766

FAMILY LAW ACT 1975

IN THE FULL COURT  
OF THE FAMILY COURT OF AUSTRALIA  Appeal No EA51 of 1998
AT SYDNEY  Appeal No. EA57 of 1998
  File No CA1260 of 1997

BETWEEN:

CSN
Appellant Husband
- and -

JBN
Respondent Wife

REASONS FOR JUDGMENT OF THE FULL COURT

CORAM:  LINDENMAYER, KAY AND MULLANE JJ
DATE OF HEARING:  27 November 1998
DATE OF JUDGMENT:                  23 December 1998

EDITED

APPEARANCES:  Ms Bryant, one of Her Majesty’s Counsel, instructed by Farrar Gesini & Dunn, 17-21 University Avenue, Canberra ACT 2601, appeared on behalf of the Appellant Husband.

Ms Tonkin of Counsel, instructed by Legal Aid Office (ACT), 4 Mort Street, Canberra ACT 2601, appeared on behalf of the Respondent Wife.

PRACTICE & PROCEDURE – Stay of orders pending appeal – matters to be considered in residence cases

This was an appeal by H against orders providing that the child of the marriage reside with  W, the child having resided with H since separation. H also appealed against orders refusing to stay the operation of the residence orders pending the appeal.

H was born in 1958 and W in 1966. They were both Indian and married in 1995 two weeks after meeting, in what was an arranged marriage. There is one child of the marriage, born in January 1997. Prior to the marriage, H had been living and working in Canada and W in India. The parties came to Australia in May 1996, where several members of H’s family, including his mother and sister resided.

In May 1997, H told W that he wanted a trial separation and he purchased W a one-way ticket back to India. The child remained with H in Australia and H, upon learning of W's imminent return, commenced proceedings for residence. In July 1997, W returned to Australia and cross-applied for residence.
…
The trial Judge concluded that the only way that the child could have a proper relationship with W was to make a residence order in favour of W. The trial Judge, after referring to the decision in Clemett (1981) FLC 91-013, refused H’s application for a stay of the orders pending an appeal.

On appeal, H submitted that the trial Judge had failed to evaluate the s68F(2) factors and had made findings that were not open on the evidence. H also sought to adduce fresh evidence in the form of several affidavits dealing with alleged difficulties at contact changeover and the general unhappiness of the child.

Held: Appeal dismissed

Stay Appeal:

1. To the extent that the trial Judge interpreted Clemett’s case as requiring a consideration of the number of changes in residence that have occurred in the past, the trial Judge misunderstood the principles expressed.

2. The evidence before the trial Judge indicated that the child was being adequately cared for by H and that the appeal was being prosecuted bona fide. The effect of not granting a stay could have led to a situation where the child moved from H’s house to W’s house pursuant to the orders of the trial Judge and then was placed back into the care of H pursuant to orders of the Full Court were the appeal successful. Such a situation was undesirable and ought to have been avoided.

3. Whilst a stay should have been granted, given the passage of time since the judgment was delivered, and that the appeal has now been fully argued and that there is no undisputed evidence which would lead to the conclusion that the welfare of the child required the child to be placed with H pending judgment in this matter, it was inappropriate to allow the appeal in respect of the stay.

Appeal dismissed

Reportable on the stay issue only

H to pay $2000 towards W’s costs of the appeal

1. In this matter, the husband appeals against orders made on 16 June 1998 wherein Faulks J ordered that the child of the parties, A, born January 1997 reside with the wife and that the appellant have certain defined contact with the child.  Additionally, he appeals against orders made by Faulks J on 26 June 1998 refusing to stay the operation of the orders made on 16 June 1998.

1. Before providing any significant background to this matter, it is convenient for us to deal with the stay appeal.  The competing residence claims before the trial Judge involved a then 18 month old child.  The child had lived with her father from about the time the child was 3 months of age.  There was a shared care arrangement in operation since July 1997 pursuant to orders made by Finn J, which saw the child with her mother on three days and two nights of each week and spending the balance of time with her father.  It was not part of the wife’s case that the child was being physically neglected in the care of the husband.  Faulks J ordered that the child reside with the wife and that the husband have contact with the child for three days per fortnight, plus some other block contact periods.  His Honour delivered judgment on 10 June 1998 and pronounced orders on 16 June 1998.  A Notice of Appeal was filed on 17 June 1998.  An application to stay the orders was filed on 18 June 1998.

1. In his reasons for dismissing the application for a stay, the trial Judge accepted that the appeal was based on substantial grounds, was not a mere delaying tactic and was being prosecuted bona fide.  His Honour referred to the decision of the Full Court in Clemett (1981) FLC 91-013, and in particular, to the judgment of Nygh J, with whom Dovey and Ross-Jones JJ agreed.

1. In Clemett’s case, supra, 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.”

1. Whilst Faulks J was concerned with possible delays in the hearing of the appeal, which his Honour concluded would “be not less than some three months and possibly not more than six months”, his Honour said that the effect of the Family Law Rules on the issue of a stay (Order 32 rule 4(1) “…an appeal does not operate as a stay of proceedings…”) was as follows:

“It seems to me that the Rules are quite clear.  The lodging of a notice of appeal does not operate as a stay.  It remains open to the appellant to demonstrate that it would be in the best interests of a child pending an appeal that the existing arrangements should be maintained.  This is in the face of a decision of a judge that in fact those arrangements are not in the best interests of a child after a considered decision.”

1. His Honour then concluded:

“Other than that [the assertions by the husband that it will be detrimental to the child not to remain in his care], there is no evidence before me which constitutes a basis for saying that there would be any interference with the best interests of Ashanthi for her to remain as I determined her best interests were for the next three months or at a maximum five months.”

1. However, in the course of reaching his conclusion that the stay should be refused, his Honour dealt with the opening passage from the quotation from Clemett’s case, supra, dealing with the limitation of frequency of change in the following manner:

“It is undesirable by any measure that children should be subjected to almost whimsical changes pending a final determination of matters relating to the best interest.  It is clear that in circumstances where the change would be radical and possibly irreversible it is inappropriate that such a change should occur.  For example, if the child were to be taken out of the country pending the appeal then such a change clearly is within the range of matters foreseen by his Honour.

Similarly, if there was some suggestion that there had been many changes and this was the most recent then again this would be a matter of some seriousness.”

1. What his Honour did not refer to was the possibility that there may be a further change at some point in the future.  It is not part of his Honour’s decision, as we see it, that he was referring to the possibility that there would be a change back from the wife (as in the case of Clemett, supra) to the husband, but rather that the number of changes which might have occurred in the past may create a problem.

1. In our view, this is a misunderstanding of the principles expressed in Clemett, supra.

1. In an earlier decision of Sanders (1976) 26 FLR 474 at 476, Evatt CJ, with whom Marshall and Watson SJJ concurred, said:

“In custody cases, whether they arise at first instance or on appeal, in my view it is not desirable to disturb the status quo pending the determination of the matter unless there is something about that status quo which might be harmful to the child.  I am not talking of cases where the judge orders a reinstatement of a position that has been disturbed by one of the parties recently.  Where a judge makes an order that changes the custody and care of the child, it is particularly important that the appeal be heard as quickly as possible.

In this case there is nothing to suggest that any harm would have resulted to the child by staying with the mother, and it is not suggested that she would not have been able to give it care which it needs.  It is a very young child of only three months.  Nor is there anything to suggest that the hearing of the appeal would have been in any way prejudiced by leaving the child with its mother.”

1. In Atkinson (Appeal EA79 of 1997, judgment delivered 5 September 1997), the Full Court heard an appeal against the refusal of Purdy J to stay orders which would have had the effect of moving children aged 9, 6 and 3 from the wife’s residence to the husband’s residence after they had been in the wife’s sole care for approximately 18 months.  There was no significant challenge to the quality of care being offered by the wife.  Purdy J refused a stay on the basis that the appeal could not be dealt with within a reasonable time.  The orders were made on 18 August 1997 and called for the delivery of the children to the father that evening.  The stay application was refused that day and an appeal against the stay application was heard on 5 September 1997.  Ellis J delivered a judgment with which Lindenmayer and Gun JJ concurred.  His Honour observed that there was no evidence before Purdy J as to the state of the Full Court list and no consideration was given to the possibility of the hearing of the appeal being expedited.  His Honour further said:

“In any event, I would have considered a hearing ‘more closely approaching six months’ was a hearing within a reasonable time in all the circumstances of this case.  Moreover, in my view, the trial Judge did not then consider the further criteria referred to in Clemett, namely whether the present circumstances of the children were satisfactory, that is, the circumstances which existed prior to the making of the parental order…Instead of embarking upon that consideration, it appears that the trial Judge embarked upon a consideration of what harm, if any, would be done to the children if a stay were not granted.  As a consequence, he did not consider, in my view, relevant factors, namely, the circumstances of the children prior to his order and the desirability of limiting changes in residential arrangements with all that entails, particularly in this case, changes in schooling.”

The Full Court then allowed the appeal and stayed the operation of the orders of Purdy J pending an appeal that was fixed for hearing some three months later.

1. In our view, this was a case in which the evidence indicated that at least in the short term, the child was being adequately and appropriately cared for by the husband.  It was an appeal that his Honour found was bona fide and substantial.  It was an appeal which his Honour, without any apparent inquiries being made, estimated could be heard between three and six months time.  The effect of not granting a stay could have led to a situation where the child moved from the husband’s house to the wife’s house pursuant to the orders of the trial Judge, and then was placed back into the care of the husband pursuant to the orders of the Full Court were the appeal to be successful.  This would clearly be a situation which would be undesirable and could be avoided.  It is exactly that type of situation which we understand the Full Court in Clemett’s case, supra was referring to when it said at 76,175:

“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.”

1. Whilst we do not wish to place fetters on the general discretion of a trial Judge in determining whether or not to grant a stay, especially where the stay has to be determined according to the general principle that the best interests of the child are the paramount consideration, in our view, in this case, the circumstances were such that a stay should have been granted.

1. Having said that, however, given the passage of time since the judgment was delivered, and given that the appeal has now been fully argued, it would be inappropriate for us to allow the appeal in respect of the stay whilst we reserved judgment in respect of the principal appeal.   Events have overtaken proceedings and we have no undisputed evidence before us as to the present circumstances of the child which could lead us to conclude that the welfare of the child would now require the child to be placed once again in the husband’s care pending the delivery of judgment in this matter.  Accordingly, we propose to dismiss the appeal in respect of the refusal by the trial Judge to grant a stay of his orders.

[The Court then considered and dismissed the substantive appeal].