Dautel and Dautel (No.2)

[2018] FCCA 280

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAUTEL & DAUTEL (No.2) [2018] FCCA 280

Catchwords:
FAMILY LAW – Parenting – application for stay pending appeal – final orders required relocation of the residence of the children from their mother in Town B, Northern Territory to their father in Town A, Queensland – where orders have been given effect – application dismissed.

Legislation:

Family Law Act 1975 (Cth)

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

Applicant: MS DAUTEL

Respondent: MR DAUTEL

File Number: DNC 584 of 2015

Judgment of: Judge Young

Hearing date: 29 January 2018

Date of Last Submission: 29 January 2018

Delivered at: Darwin

Delivered on: 29 January 2018

REPRESENTATION

Counsel for the Applicant: Ms Nguyen

Solicitors for the Applicant: Margaret Orwin Solicitors

Counsel for the Respondent: Ms Giacomo

Solicitors for the Respondent: Cater & Blumer

Counsel for the Independent Children’s Lawyer: Ms Palavra

Solicitors for the Independent Children’s Lawyer: Northern Territory Legal Aid Commission

ORDERS

1. That the Application in a Case filed by the mother on 18 January 2018 be dismissed.

2. That the question of the father’s costs of today be reserved to the Family Court of Australia.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Judge Young delivered this day will for all publication and reporting purposes be referred to as Dautel & Dautel (No.2).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 584 of 2015

MS DAUTEL

Applicant

And

MR DAUTEL

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgement were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a stay application brought by the mother following orders made by me on 21 December 2017 that the three children of the marriage, who are aged 12, 9 and 5, should live with the father.  The orders made on that date required the relocation of the residence of the children from their mother in Town B, Northern Territory to their father in Town A, Queensland.  The notice of appeal and the application for a stay was filed on 18 January 2018.

3. It appears that the relocation has already taken place.  Both parties filed affidavits in relation to the stay application and it appears that the children were spending time with their father pursuant to the existing orders, or at least arrangements entered into by the parties, and the children have remained living with him in substance or for most of the time since those orders were made.

4. The children have been enrolled in school in Town A and commenced school last week, that is, on 22 January 2018.  The two younger children are attending School A and [X] is attending School B  The affidavit of the father says that he and the mother informed the children of the decision of the court on or about, as far as I can understand the father’s affidavit on the point, 3 January 2018.  The mother’s affidavit does not say whether or not she informed the father of her appeal and any stay application before the children commenced school in Queensland.

5. The primary basis of the mother’s application is that unless a stay is granted any success on appeal by her will be rendered “nugatory”.  On questioning of her counsel, it appears that what is really meant by the use of that word is that if the mother is successful on appeal and a presumed re-hearing, then the children will need to be moved again, in other words, back to live with her.  It was said that removing them from school in Queensland, considering they have only been going to school for a little more than a week there, would not be, and I quote from the written submissions of the ICL, “a major upheaval”.  It was said that they should return to the home and the schools they know in Town B, pending the appeal and any re-hearing.

6. In response to an assertion by the father that the mother was intending to move from Town B to Darwin, counsel for the mother told me, after I had stood the matter down for her to obtain instructions, the mother and her partner were contemplating moving to Darwin but it would not occur until later this year.  Obviously, such a move would entail a change of schools for the children.  As I understand counsel for the mother that move to Darwin was likely.  Another matter that arose from the affidavits was that the father has, since the trial, re-partnered and is living with his partner, who is identified in the affidavits only as Ms S.  The stay application was supported by the independent children’s lawyer whose submissions were substantially adopted by the mother. 

7. Turning to the applicable legal principles, there was no dispute that the principles I have to apply in considering the stay application are those set out in Aldridge & Keaton [2009] FamCAFC 106. Those principles, or perhaps considerations or criteria might be more accurate, are set out in paragraph 18 of that judgment and they are:

   (1)The onus to establish a proper basis for the stay is on the applicant for the stay and it is not necessary for the applicant to demonstrate any special or acceptable circumstances.

   (2)A person who has obtained a judgment is entitled to the benefit of that judgment.

   (3)A person who has obtained a judgment is entitled to presume the judgment is correct.

   (4)The mere filing of an appeal is insufficient to grant a stay.

   (5)The bona fides of the applicant.

   (6)A stay may be granted on terms that are fair to all parties and this may involve a court weighing the balance of convenience and the competing rights of the parties.

   (7)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.

   (8)Some preliminary assessment of the strength of the proposed appeal and whether the appellant has an arguable case.

   (9)The desirability of limiting the frequency of any change in a child’s living arrangements.

   (10)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.

   (11)Finally, the best interests of the child, the subject of the proceedings, are a significant consideration.

8. I do not propose to say anything in detail about the first four points as I consider them to be self-explanatory but I will turn to the other matters.

9. First, the applicant’s bone fides.  I have no reason to doubt the genuineness of the mother’s wish to prosecute an appeal and achieve the substance of what is sought, that is, a return of the children to her care. 

10. The question of fairness and balance of convenience: the mother and the ICL simply submitted that the pre-existing arrangements should be maintained and that would allow the children to maintain a meaningful relationship with their father.

11. I think implicit in that is the submission that no harm would be done by maintaining what had been, until the Christmas holidays, the pre-existing arrangements.  However, in my view, there are other factors that need to be taken into account under this heading.  Neither of the parties nor the ICL made a submission on the likely time frame for an appeal and a new re-hearing but I consider that around 12 months is a probable minimum.

12. If the stay application is granted, the children will be removed from their residence with the father and returned to reside with their mother in Town B.  This will involve a removal from the schools that they are presently attending, albeit only for a short period, and recommencing or commencing a school, perhaps this week or even next week, in Town B.  There was no evidence about how long it would take to have the children moved from Town A to Town B but I imagine that it would be a few days involved at a minimum.

13. I consider that it is likely that their removal from their present schools will be disruptive and possibly distressing for them.  A further factor is the one that I’ve mentioned: the mother has foreshadowed a likely move from Town B to Darwin later this year.  If so, the children will need to be removed from their Town B schools and commence schools in Darwin.  So, if the mother is ultimately successful after an appeal and a re-hearing, there are, in all likelihood, removals from two schools, that is, the schools in Town A, the schools in Town B and re-enrolment or commencement at a third school this year.

14. If she is unsuccessful on an appeal or on an appeal and re-hearing, then the children will presumably be returning to Town A to live with the father.  That would be a third move.  If no stay is granted, then the children will remain in school in Town A and if the mother is successful, at the end of any appeal and re-hearing, say, in about 12 months time, then the children will go to live with her, in all likelihood, in Darwin and that will be one move.

15. The next point involves weighing of the risk that an appeal may be rendered nugatory if a stay is not granted. That is a substantial factor that must be taken into account.  It was not put in submissions that the meaning of the word “nugatory” was as is set out in paragraph 21 of Aldridge & Keaton, that is, where a refusal of a stay would render a successful appeal nugatory or make it “impossible and impracticable to restore the position.” In the circumstances of this case, I am not satisfied that that sense of the word “nugatory” - perhaps it’s correct in the dictionary sense - is easily applicable.

16. The risk is that if no stay is granted and the mother is successful, then the children will have resided with the father for a year or so, assuming a time frame of 12 months for appeal and any hearing.  There was no suggestion in submissions that that would necessarily be harmful to the children or significantly affect their relationship with the mother or anything of the kind.  The highest that counsel for the mother put it was that the fact of residence with the father over a year or so, preceding a re-hearing, may be a factor that would sway a court or influence a court.

17. I am not entirely convinced that that is a proper consideration in the stay application.  At best, it is highly speculative and it is not a matter that I believe I can give any weight to.

18. A preliminary assessment of the strength of the appeal is required.  There are seven grounds of appeal set out in the notice of appeal.  Counsel for the mother said that these grounds of appeal will or are likely to be amended, although she clarified that the amendment would only relate to particulars.

19. I did not understand that counsel for the mother, who appeared before me today, was likely to be counsel appearing on any appeal, so I am not sure how much weight I can give to that submission.  I think the best that I can do is simply consider, not some undrafted grounds of appeal, but the grounds of appeal that are presently before the court and those are:

    a)that the trial judge should have considered the risk of the father actively discouraging the children’s relationship with the mother;

    b)that the trial judge’s finding that the children had a degree of immunity in face of undermining behaviour by the father was not a finding available on the evidence and was an error therefore caused when considering risk to the children;

    c)The finding that there was only one isolated incident revealed, relevant to exposure to abuse, neglect or family violence, was an error;

    d)Failing to consider the likely effect of separation of the children from the mother, as a primary carer;

    e)Failing to adequately address the family violence; and

    f)Failure to adopt the ICL’s – which stands for independent children’s lawyer, of course – submission regarding stability of care and location.

20. I should say, at the outset, that (f) is not a proper ground of appeal, and I do not propose to give it any further consideration.

21. Dealing with the other grounds:  first (a) the ground that the trial judge should have considered the risk of the father actively discouraging the children’s relationship with the mother.  This was considered in the decision in some detail. 

22. Relying on the numbering of the paragraphs given by counsel for the father – which I have checked and which appears to be correct – paragraphs 15, 16, 17, 18, 19, 20, 21, 30, 31, 44, 53, 80, 81, 85, 100 and 101, dealt with that issue.  It was one of the two central issues in the trial. I do not accept that the risk of the father discouraging the children’s relationship with the mother was not considered, indeed, anxious consideration was given to that factor.

23. Next (b), that the trial judge’s finding that the children had a degree of immunity in the face of undermining behaviour by the father, was not available on the evidence and an error was therefore caused when considering the risk of the children.  Those issues have been dealt with, or were dealt with, in the decision at paragraphs 81, 85, 101 and 109.  The evidence was - I think it is fair to say about that subject – inferential.  But, nevertheless, there was evidence.  Counsel for the father suggested that the finding was open to me as the trial judge.

24. Next (c), the finding that there was only one isolated incident relevant to exposure to abuse, neglect or family violence was an error.  I do not agree that that was actually the finding made.  In the decision there was reference to three kinds of coercive and controlling behaviour, or arguably coercive and controlling behaviour, that is, family violence.  There was a reference to threatening text messages sent by the father, threats of suicide, or alleged threats of suicide by the father, as well as the incident where the car window was damaged by the father.  Those matters were considered.  And, as I say, I do not agree that the appeal ground accurately characterises the evidence or the findings.

25. Next (d), failing to consider the likely effect of separation of the children from the mother, as primary carer. That matter was canvassed in paragraphs 93 to 99 of the decision and paragraphs 38, 45, 47 and 127. It was a matter considered in some detail and not only the impact of, or the effect of, separation from the mother, but the effect of any change in the children’s living arrangements – that is, the changes in schools and so on.

26. Next (e), failing to address the family violence. Paragraph 20 deals with the text messages that I have mentioned. Paragraph 21 deals with the alleged suicide threats. Paragraph 45 deals with the windscreen. Paragraph 69 deals with the family consultant’s interpretation of the alleged suicide threats. Paragraph 131 in the decision is a summary of the Court’s consideration of those issues. Whether or not that is adequate in all the circumstances will, I suppose, depend on the view of an appeal court.  But those are the places where family violence was considered.

27. It is not as the appeal ground, particularly appeal ground (c), appears to suggest, limited to the breaking of the windscreen incident.  On my assessment, or at least preliminary assessment, of the grounds of appeal, they have modest prospects of success.

28. The other factor in Aldridge & Keaton that must be considered is the desirability of limiting the frequency of any change in a child’s living arrangements. 

29. I have dealt with that under an earlier heading relating to weighing the balance of convenience, but to repeat myself, under the mother’s proposal, if a stay order is granted, the children will be removed from Town A where they are now living, removed from the schools where they have been enrolled and have commenced attending – albeit only a week ago – brought to Town B, to commence a school in Town B sometime in the near future.  Then, in all likelihood, they will be removed from their schools in Town B, move to Darwin with their mother and Mr B, and commence schools in Darwin.

30. So, at a minimum, there will be two moves this year if the stay is granted.  If the children remain with their father pending any appeal, that is, the stay application is refused, then they will remain in their present schools: for a year or thereabouts. If the mother is successful, they will then return to Darwin. 

31. It would appear that the frequency of any change in the children’s living arrangements, including change in their schools, is likely to be less if they remain with their father.  As for their living arrangements with their parents, that really depends on the success of the application. In any event, if the mother is successful on the stay application and the appeal, these children will be moving this year from Town A to Town B to Darwin in all likelihood. 

32. The period of time for hearing the appeal: as I have mentioned, I did not receive any submissions about that from the parties, although, I am told that there is an appointment for the appellant to settle the appeal index in February before the Registrar.  As I say, in the absence of submissions, or other information, the best that I can estimate is around 12 months, probably as a minimum for any appeal, and rehearing.

33. Finally, the best interests of the children are a significant consideration.  I consider that the fact that the children have commenced school in Queensland and have been told by their parents that there is to be a change in the arrangements because of the Court orders, is a significant factor. I accept that the children have only started going to their schools in Town A since last Monday.  

34. Nevertheless, I consider that removing them from their schools in the second, perhaps, the third week - if it is next week - of school is likely to be disruptive and possibly very distressing for these children.  I also take into account that the mother has foreshadowed a likely move to Darwin during the year, with the associated changes.  The children are presently living in Town A.  Town A is a town in Queensland where the children have lived with their father and mother previously. 

35. My recollection of the evidence is that they lived in Town A on two occasions for some substantial periods. I think it was once in 2011 and, then, again for two years or thereabouts, until they moved to Town B in 2014.  Town A is familiar to them.  They have cousins living in Town A.  [A], in particular – who is a year older than [Y] – is close to [Y], and, if I recall correctly, [X] also has a male cousin who is a little bit older, or about the same age as him. 

36. Town A is a reasonably known quantity to them and that was one of the factors that the family consultant took into account in assessing that the transition of the children to live with their father would not be as disruptive as it might have otherwise been. They also have a close relationship with their father – that was well-established in the evidence.

37. While it is invidious for a trial judge to assess the prospects of an appeal from his or her decision, I am not satisfied that the prospects of appeal are any more than modest. 

38. I also take into account the desirability of limiting the frequency of changes in the children’s living arrangements. If the mother is successful on her stay application and her appeal there are at least two significant changes in store for the children this year – two more changes.

39. If there is no stay and they remain with their father for the year, they will stay in their present school, and, if the mother is successful, they will move once to live with her, in all likelihood, in Darwin.   For those reasons I dismiss the application.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 7 February 2018