Dansey and Dansey (No. 2)
[2021] FamCA 631
•27 August 2021
FAMILY COURT OF AUSTRALIA
Dansey & Dansey (No. 2) [2021] FamCA 631
File number(s): SYC 3614 of 2021 Judgment of: BERMAN J Date of judgment: 27 August 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings – Where the mother unilaterally relocated the children’s residence intrastate – Where interim orders were made requiring the mother to return with the children and for supervised time spending with the father – Where the mother has filed a Notice of Appeal – Where the mother seeks a stay of the interim orders – Consideration of whether the mother has an arguable case – Consideration of whether the appeal would be rendered nugatory if a stay is not granted – Where the mother has not established an appropriate basis for stay – Where the ability to prosecute the appeal will not be affected – Where the children’s best interests are likely to be served by compliance with the orders – Application dismissed. Legislation: Family Law Act 1975 (Cth) s 60CC(2A) Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125
Jackamarra v Krakouer (1998) 195 CLR 516
K & B (2006) FLC 93-288
Number of paragraphs: 44 Date of hearing: 4 August 2021 Place: Adelaide Counsel for the Applicant: Mr Romaniuk Solicitor for the Applicant: Martin Street Lawyers Counsel for the Respondent: Ms Vohra Solicitor for the Respondent: Pearson Emerson Family Lawyers ORDERS
SYC 3614 of 2021 BETWEEN: MS DANSEY
Applicant
AND: MR DANSEY
Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
27 AUGUST 2021
THE COURT ORDERS THAT:
1.The mother’s application for stay of orders 1, 3, 4, 5(d) and 6 of orders made 30 June 2021 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dansey & Dansey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
Following a contested interim hearing on 4 June 2021, orders were made on 30 June 2021 that provided for X born in 2012 and Y born in 2013 (collectively “the children”) to live with Ms Dansey (“the mother”) and spend time with Mr Dansey (“the father”) as follows:
3.That the children spend time with the father supervised by the paternal grandparents in the week commencing 12 July 2021 as follows:
(a)From after school or 3.00 pm for a period of four (4) hours once each week and failing agreement each Wednesday from after school or 3.00 pm until 7.00 pm; and
(b)For a period of eight (8) hours each weekend and failing agreement from 9.00 am until 5.00 pm each Sunday.
4.That for the purpose of the time which the children spend with the father, the paternal grandparents shall facilitate changeover with the mother where such changeover does not take place to and from the children’s school.
5.That the parties be restrained and an injunction granted restraining each of them from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other party in the presence of the children;
(b) Using physical discipline on the children or either of them;
(c)Discussing the proceedings or the contents of any documents filed in the proceedings with or in the presence of the children; and
(d)Relocating the children’s residence outside of a 10 km radius of Suburb B Public School except in the event of written agreement between the parties.
6.That upon the advice of the mother that she intends to return with the children to take up residence at F Street, Suburb B, New South Wales, the father shall vacate the premises within forty eight (48) hours of such notice.
7.That the father be restrained and an injunction granted restraining him from attending or remaining in the vicinity of the mother, her place of residence and her place of employment save as may be necessary to give effect to these orders.
The mother filed a Notice of Appeal on 8 July 2021 in respect of paragraphs 1, 3, 4, 5(d) and 6 of the orders made, relying upon the following grounds of appeal:
1.The Primary Judge erred in the exercise of discretion under Pt VII of the Family Law Act 1975 (Cth) by:
a.Failing to consider, apply and make findings directed towards the principles discussed in M v M (1988) 166 CLR 69, and cases such as W and W (abuse allegations: unacceptable risk) [2005] FamCA 892 (Full Court), as regards the existence of, and evaluation about, an unacceptable risk of sexual abuse.
b.Making the findings that the Primary Judge made at [69], [58] and [51], including as they reflect an incorrect evidential approach which does not accord with the task identified in M v M (1988) 166 CLR 69, and cases such as W and W (abuse allegations: unacceptable risk) [2005] FamCA 892 (Full Court), as regards the existence of, and evaluation about, an unacceptable risk of sexual abuse.
2. The Primary Judge erred in respect of the obligation to state reasons.
3.The Primary Judge failed to engage in a meaningful way with the Appellant’s case on family violence and, as such, made an error in the nature of a denial of procedural fairness.
By Application in a Case filed 7 July 2021 the mother seeks a stay of the orders.
The mother relies upon the following documents:
(a)Affidavit of Ms M including the child inclusive conference memorandum to the Court dated 28 June 2021, filed 7 July 2021;
(b)Affidavit of Ms M filed 8 July 2021;
(c)Affidavit of Ms K filed 3 August 2021;
(d)Affidavit of Ms L filed 3 August 2021; and
(e)Affidavit of Ms M filed 3 August 2021.
The further affidavit material relied upon by the mother is of limited assistance, save and except as to the child inclusive conference memorandum which is annexure “M-3” to the affidavit of Ms M filed 7 July 2021.
Consideration has been given to the affidavit of Ms K who is a domestic violence case worker and Ms L who is a domestic violence counsellor.
Both deponents have engaged with the mother since June 2021. Ms K has met the children although such involvement did not extend to therapeutic engagement.
The affidavits of Ms K and Ms L are based upon the history as provided by the mother and are of little assistance in determining whether the orders made, that would provide for the children to spend time with the father, should be stayed pending the appeal.
In support of the application for a stay of the orders, the mother summarises her submissions in support of a stay at paragraph 10 of her counsel’s outline of case document as follows:
The Mother says, in short, that beyond acknowledging that the Mother’s case was the abuse of her and the children had occurred and was a risk and the Father’s case was that such abuse was strenuously denied, the Court did not appropriately consider, as it was required to do, the evidence that was before the Court so as to be in a position, on an interim hearing, applying the cautions of cases such as Goode & Goode (2006) FLC 93-286, to analyse and determine the risk, if any, to the children. The Mother says, in short, treating the Mother’s allegations as being equalled or met by the Father’s strenuous denial was to treat the Mother’s allegations as just being mere allegations (which appears endorsed by the Father in the Father’s submissions document, paragraph 7), without considering the nature of them to determine and analyse the existence of risk, if any. The Father’s strenuous denial did not permit the Court to treat the risk as not, for practical purposes, existing.
The father opposes the application for stay and submits that taking the mother’s case at its highest, there is no evidence which elevates the status of the mother’s allegations beyond that they are mere allegations. The father contends that the refusal to stay the orders would not render the appeal nugatory in circumstances where a return to Sydney, pending the appeal of interim orders, would do no more than return the children to a familiar environment.
It is also argued that the prospects of a successful appeal are unlikely in that the reasons for judgment did properly engage with the mother’s case, namely that the father presents as a risk to the children and the mother and given that the proceedings were interim in nature and it was not possible to weigh up and determine the veracity of the allegations of each of the parties.
It is also asserted that her application for stay should not act as an automatic stay of the orders, in circumstances where the mother did not return to the Suburb B area nor pursue expedition of her appeal.
LEGAL PRINCIPLES
In Aldridge & Keaton(Stay Appeal) [2009] FamCAFC 106 the following is set out:-
17.This is an appeal from a discretionary judgment. 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).
18.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 Limited [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:
•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;
•a person who has obtained a judgment is entitled to the benefit of that judgment;
•a person who has obtained a judgment is entitled to presume the judgment is correct;
•the mere filing of an appeal is insufficient to grant a stay;
•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 a 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 the stay for a short period of time; and
•the best interests of the child the subject of the proceedings are a significant consideration.
DOES THE APPLICANT HAVE AN ARGUABLE CASE
In Jackamarra v Krakouer (1998) 195 CLR 516 at [32] Gummow and Hayne JJ referred with approval to the remarks of Barwick CJ in General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 where at 129 his Honour considered the test to be applied when considering an application for summary dismissal:
The test to be applied has been variously expressed; “so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”; “discloses a case which the Court is satisfied cannot succeed”; “under no possibility can there be a good cause of action”; “be manifest that to allow them” (the pleadings) “to stand would involve useless expense”.
At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot exceed; or “so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument”; “so to speak apparent at a glance”.
Their Honours engaged in a discussion of an “arguable” case and the test that might be applied at [35]:
The parties submitted here that the Full Court should have decided whether the appeal was “arguable”. It is important to understand what is meant in the context by “arguable”. If it means no more than that counsel, acting reasonably, can formulate an argument which can properly be advanced in support of the appeal, the test is too loose; if it is clear that the argument will fail, the appeal should not proceed. To permit it to proceed is to subject the respondent to the many cost of litigation needlessly and is to occupy the courts when they could be occupied more productively. …
(Footnotes omitted.)
For there to be an arguable case it must be one that is capable of being argued with some prospect of success.
I do not consider that the grounds of appeal as presented on behalf of the mother are groundless or could not possibly succeed. It is arguable in the sense there is more substance than the mere formulation of an argument by counsel but weight should be given to the contention of senior counsel for the husband that the proceedings are of an interim nature and does not readily allow for evidence to be tested. That does not mean that there should be a default position of an order never being made in favour of a party subject of an assertion that they represent an unacceptable risk, but rather that the Court should adopt a cautious and careful approach and as required by s 60CC(2A) of the Family Law Act 1975 (Cth), greater weight must be given for the need to protect the child from physical or psychological harm, abuse, neglect or family violence.
WOULD THE APPEAL BE RENDERED NUGATORY IF A STAY IS NOT GRANTED
The mother and children remain in the H Shire. She has not returned to the Suburb B area.
It is not contentious that the mother’s decision to relocate the children from Sydney was without notice and without the consent of the father.
The children were appropriately established in Suburb B and whilst the matter is not to be determined by placing significant weight on an argument that the mother’s actions have disrupted the status quo of the children, it is at least in part a relevant consideration as to the prejudice caused to the mother if this stay is not granted.
There is merit in the argument that the mother’s current circumstances are not a settled position and that the children’s return to the Suburb B area or alternatively the near environs, does not cause prejudice to the mother’s ability to argue the appeal.
The proceedings are at an interim stage and it could not be said that the mother’s current circumstances represent the settled position for the children. The refusal to stay the interim orders does not prevent or prejudice the mother’s appeal but does interfere with the mother’s ability to remain with the children in the H Shire. The issue for the mother is not so much how the interim orders impact upon the children but rather how they impact upon her desire to relocate the children geographically distant from the father.
The mother is not able to pull herself up by her own bootstraps by now relying upon the purportedly settled circumstances of the children.
THE BEST INTERESTS OF THE CHILDREN
Whilst not a paramount consideration, the best interests of the children may well be highly relevant.
In K & B (2006) FLC 93-288 the Full Court said at 80,942:
32.The granting or refusal of a stay involves an exercise of discretion by a trial Judge. While 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. The interests of children would not be promoted by an inflexible requirement or presumption in every case to maintain the status quo prior to the making of orders the subject of the stay application, and to ignore unsatisfactory arrangements at the time of the orders, or significant events which have occurred after the making of those orders.
The hearing of the competing interim applications took place on 4 June 2021 with judgment delivered on 30 June 2021. The parties and children attended upon a family consultant for a child inclusive conference on 23 June 2021 with an extensive memorandum being published on 28 June 2021. The Court did not have the advantage of the child inclusive conference memorandum to which each of the parties have referred and seek to be brought to account.
At the time of the conference, the mother and children were living in the H Shire area. The parties were not able to reconcile their differences. The father sought that the children reside in an equal shared week about arrangement including the children spending half of the school holidays whereas the mother proposed that the children neither spend time with the father nor engage in any remote or electronic communication with him.
The mother alleged that the father had “physically, verbally, sexually, financially and psychologically abused her”[1] and had engaged in coercive and controlling conduct throughout the marriage. In addition, she maintained that both she and the children at times were “terrified”[2] of the father.
[1] Child Inclusive Conference Memorandum to Court dated 28 June 2021, paragraph 7.
[2] Ibid.
The memorandum records the father’s trenchant denials of the mother’s allegation and his claim that the allegations were false and should be considered as part of an overall strategy to enable the mother to relocate the children to the H Shire where her brother resides.
The mother also expanded her concern in respect of the potential perpetrators of family violence to include the paternal grandfather, based upon an allegation that X had expressed her concern that the paternal grandmother may be at risk from the paternal grandfather.
In interview with the family consultant, X impressed as an engaging and articulate child who had settled in to her new school. The family consultant did record that X misses her friends at her old school in Suburb B and in relation to her relationship with the significant adults in her life, the following paragraphs summarise her position:
41.X identified the most important people in her life as “my Mum, my Dad, my brother, Z [paternal grandparent’s dog]” and W. She said that she and Y get on good, that his “hair is adorable” and that when she is upset he tries to cheer her up by acting like a dog, as she loves dogs. She said that she does not like it when Y takes her favourite toys and refuses to give them back. X described that her ‘Nanna’ and ‘Grandad’ as “really nice” and that they allow her to have lots of lollies and watch TV before dinner and bed. She said that once, when Y hurt her, her ‘Grandad’ threatened to hurt Y and this made her sad.
42.X said that her mother is “really nice” but that at the moment “she has a lot of work to do and doesn’t want to speak to us about it … sometimes she takes her anger out on us … by raising her voice and saying no more lollies.”…
By way of further explanation, X expanded on the effect of being separated from her father and paternal grandparents as follows:
45.X said that she does not like that she cannot see her Dad, ‘Nanna’, ‘Grandad’ and ‘Z. X said that she did not know that she, her mother and Y were leaving and explained that her mother had told her that they would leave after she finished year six. X said that her mother told her that they had to leave, as their father was being “really rude and the counsellor said it is not safe to be with Dad anymore”. X said that her father was “rude” when he was “not kind or shouting” but that he was “nice when he is not rude” such as letting her and Y watch TV and giving good cuddles. X said it would be nice to see her Dad, ‘Nanna’ and ‘Grandad’ but “I would worry that they will be shouty at me and say, where have you been”. She said that maybe she would like to spend time with her father during school holidays in the future.
In interview, Y also expressed that whilst he was happy at his new school he missed his old school and his friends.
The following appears at paragraph 48:
Y said that the most important people to him are “Mum, Dad, Mr N [paternal uncle’s partner], Mr P [paternal uncle], Nanna, Grandad, Z and X.” …
Whilst Y expressed to the family consultant that he wanted the parties to engage in less argument and that they stop shouting at each other, “he never felt unsafe with either parent but that he would like both of them to stop “shouting and yelling in the future”.”[3] He said that he misses his dad and Z and would like to speak to his father on the computer. The family consultant considered that there was no conclusive outcome in respect of the mother’s allegations of child sexual abuse and that if they were not ultimately substantiated, the children would not be able to maintain an appropriate and meaningful relationship with the father if they remained geographically distant from him.
[3] Ibid, paragraph 51.
The following evaluation by the family consultant is of relevance:
56.… Therefore, it may be important for the Court to give consideration to [the mother] and the children to returning to within a reasonable distance of the family home, previous school, friends and activities, with necessary safety conditions in place, while assessments and investigations are ongoing. The parental separation and the move to the H Shire has been very recent and while another move will likely be disruptive for the children, it will not be as disruptive as them settling into the H Shire and possibly having to move back at a later stage in the proceedings.
And then at paragraph 57:
If [the mother’s] proposal was implemented and the children remain in the H Shire with no communication or time of any form with [the father] and it was found that her allegations were false, this will likely have serious implications for X and Y’s long-term relationship with [the father], the extended paternal family and their emotional and social development. If this was the case, it could lead to significant mental health difficulties for the children in the long-term. If [the father’s] account is correct and [the mother] has made false allegations without any foundation, this is concerning and may suggest that [the mother] has some underlying mental health difficulty that impacts her ability to support the children’s relationship with [the father] and the children’s long term mental health.
The concern of the family consultant is that the potential for the children’s relationship with the father to be fundamentally disrupted by them remaining in the H Shire outweighs the impact of the disruption of the children moving back to the Suburb B area.
The evaluation by the family consultant as set out in the detailed memorandum lends support to the interim orders which are the subject of the appeal.
The onus is on the mother to establish an appropriate basis for a stay. I do not consider that she has done so, acknowledging that she is not required to demonstrate a special or exceptional circumstance.
The father is entitled to the benefit of the judgment. The delay of the mother in complying with the interim orders which necessitate the children being returned to the Suburb B area is a cause for a further disruption to the children rather than a basis to claim that a stay will preserve the status quo.
The mother’s ability to prosecute her appeal is not affected if a stay is not granted and it is an important consideration that the interests of the children are likely to be best served by the compliance with the interim orders.
For these reasons, I propose to dismiss the mother’s application for stay.
I make the order as appears at the commencement of these reasons.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 27 August 2021
0
10
1