DAUTRY & WEMPLE
[2015] FCCA 943
•17 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DAUTRY & WEMPLE | [2015] FCCA 943 |
| Catchwords: FAMILY LAW – Stay application – basic principles – long history of litigation – very strained parental relationship – final orders to change child’s residence made only in December 2014 – to change the child’s residence again would not be in her best interests – no evidence from the Mother to support the stay application – no legal or factual error referred to by Mother in support of application – Mother ignored (or did not refer to) relevant evidence about child attending upon a child psychologist after having been notified by the Father’s solicitor of this fact – independent report from child’s school that child is doing well when Mother complains of a range of difficulties for the child – application refused. |
| Adamson v Adamson (2015) 51 Fam LR 626 House v R (1936) 55 CLR 499 |
| Applicant: | MS DAUTRY |
| Respondent: | MR WEMPLE |
| File Number: | CAC 1472 of 2013 |
| Judgment of: | Judge Neville |
| Hearing date: | 23 March 2015 |
| Date of Last Submission: | 23 March 2015 |
| Delivered at: | Canberra |
| Delivered on: | 17 April 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Self represented |
| Solicitors for the Respondent: | Farrar Gesini Dunn |
| Solicitors for the Independent Children's Lawyer: | Yeend & Associates |
ORDERS
The Mother’s Application for a Stay, filed 27th February 2015, be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Dautry & Wemple is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 1472 of 2013
| MS DAUTRY |
Applicant
And
| MR WEMPLE |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant Mother has appealed a significant number of orders that were made in consequence of a judgment that was delivered on 18th December 2014 (“the December 2014 orders”).
Although the detailed reasons were provided last December, and the Notice of Appeal filed on 19th January 2015, the Mother’s current Application for a Stay of the orders under appeal was only filed on 27th February 2015. The reasons for the delay in filing the stay application are not relevantly explained. That being said, in my view, not a great deal turns on the delay.
For completeness, there is another Application formally before the Court, filed by the Mother on 20th March 2015, which relates to the child the subject of proceedings, travelling overseas with her Mother. That Application will be dealt with by another Judge, who will also deal with the unresolved property issues between the parties. There is a factual matter or two that relates to the travel Application that is somewhat relevant to the current matter before me, which I will mention in due course.
The Father opposed the Mother’s Stay Application; he provided detailed written submissions as well as brief oral submissions at the hearing. The ICL supported and endorsed the Father’s submissions.
Having regard to the best interests of X, and for the reasons noted below, the Mother’s Application for a Stay, filed 27th February 2015, must be refused and therefore it will be dismissed.
Before considering the evidence of the parties, and the various submissions by them (and the ICL), a few general comments or observations are apposite.
First, of particular moment in relation to the Stay Application is that, pursuant to the December 2014 orders, the child the subject of the proceedings, 5½ year old X, was ordered to reside with her Father (and his partner) and to spend time with her Mother, having lived with her Mother, and spent time with her Father, prior to those orders. It may be observed at the outset that, in my view, having changed the child’s residence quite recently, and doubtless with still some settling down taking place (not to mention the on-going litigation between her parents, or involving them, in this Court and in other courts as well) it would more likely than not be a further very significant change for the child to return to the Mother’s primary care. As noted below, while the “best interests of the child” are not necessarily a paramount consideration in stay applications, it is nonetheless a significant consideration.
Secondly, in my view, it is unnecessary to outline in any relevant detail the long, or perhaps better described as a very significant history of contest between the parties. That history, on which I rely, is set out in detail in the judgments noted below.[1]
[1] See Wemple & Dautry (No.2) [2014] FCCA 2847. See also the earlier judgments, to the degree relevant, such as Wemple & Dautry [2013] FCCA 2376, and Wemple & Dautry [2014] FCCA 401.
Thirdly, at the outset of the hearing of the stay application, I had printed out for her consideration and use paragraphs [17] and [18] from the Full Court’s decision in Aldridge & Keaton (Stay Appeal), which set out the relevant principles that apply to stay applications.[2]
[2] Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106.
Fourthly, in the course of the primary judgment delivered in December 2014 from which the Mother appeals, based on the very significant documentary and expert evidence before me, as well as the Court’s necessary assessment of the oral evidence of the parties, I made a range of comments that were adverse to and critical of the Mother both as to her credit and her general reliability as a witness. Such is the necessary and often unfortunate task of any Court. Not surprisingly, the Mother has taken issue with a number of comments and the consequences that flowed from the Court’s findings. Such is often the warp and woof of litigation, and which inevitably leaves one party disgruntled (or worse) with the outcome of the litigation. Unfortunately, in her demeanour and comments to the Court during the hearing of the stay application the Mother showed very significant hostility and disrespect to the Court. Occasional comment by the Court challenging her comments, even a brief warning in relation to her allegations, brought little relief. Having allowed the Mother (and not for the first time) very significant latitude in the expression of distrust and general disgruntlement, and in her critical comments generally about the Court and the conduct of the matter, at the very end of the hearing I asked her to remove herself from the Court because her disrespect had reached such a low level that the matter could not proceed productively.[3]
[3] The Mother also turned up for the hearing somewhat late; she made no explanation and offered no apology for her lateness.
For completeness, I might also mention that the Mother raised, but has not yet formalised (to my knowledge at least), an application to have the ICL disqualified from further participation in the proceedings.
Preliminary Observations: The School Issue
There are 22 grounds of appeal raised by the Mother. The first 6 of these grounds relate to what has been referred to throughout the long-running proceedings as “the school issue”. That issue, namely what school X was to attend commencing the school year of 2014, began the litigation in 2013. It was determined by a decision of this Court in December 2013 in favour of the Father’s orders sought. At the hearing of the school issue in 2013, and again at the final hearing in 2014, the Mother was represented by very experienced Counsel. At other times, she has been self-represented; and at other times still, she has been represented by a well-known firm of family law solicitors in Canberra.
Nothing in the matters before me turns on it, but I am advised that the Mother has made a complaint to the Law Society of the Australian Capital Territory against her former solicitor. I also understand that in proceedings in the Supreme Court of the Australian Capital Territory, the Mother’s former solicitor gave evidence, having been subpoenaed by the Father’s solicitors to give evidence. I do not know the outcome of any of these proceedings taken by the Mother.
Both in the first six grounds of appeal, and in an Application in an Appeal before the Full Court, the Mother continues to raise “the school issue.” One particular matter that the Mother continues to raise, in my view, inappropriately, is that the school issue (namely X’s attendance at (omitted) School) was not, or was not adequately, treated or considered at the final hearing.[4]
[4] The Mother also refers to the “school issue” at Ground 18 – noted below.
Subject to what is said later in these reasons, although there are 6 grounds of appeal that refer to it, her affidavit (filed 27th February 2015) in support of the Stay Application is silent in relation to the school issue. For this reason alone, in my view, the Court would be more than justified to conclude that there is no evidence at all to sustain the Mother’s Application for a Stay (noting that none of the original school orders from December 2013 are actually sought to be stayed) in relation to the first 6 grounds of appeal because she has put no evidence before the Court, or pointed to any relevant fault or flaw in the Court’s determination that would suggest relevant error.
To the degree that the Court can or should have regard to it, in her affidavit in support of her Application in an Appeal, filed 20th January 2015, the Mother outlines what she says the errors were in the December 2013 decision in relation to X’s attendance at school beginning in 2014. She also notes that the school issue was raised at the final hearing. Also, ground 18 of the Mother’s Grounds of Appeal refers to the school issue.
Accepting that she is now, to some degree at least, a self-represented litigant again, and therefore I give her the benefit of the doubt, she either:
(a) did not understand (or did not have it explained to her by her Counsel at the time) the lengthy discussions with Counsel for both parties, and with the independent children’s lawyer (“the ICL”), regarding the school issue at the commencement of the trial, which included lengthy discussions concerning (i) at the final hearing, the Mother did not seek any formal orders in relation to schooling, (ii) the operation of the principle in Rice & Asplund in the light of the December 2013 orders, and (iii) the Mother’s abandoned appeal regarding those orders, and/or
(b) did not understand (or did not have it explained to her by her Counsel at the time) that following those discussions the Court made a formal ruling and delivered an ex tempore judgment following that discussion allowing “the school issue” to be canvassed at the final hearing,[5] and/or
(c) given that both parents sought orders at the final hearing for sole parental responsibility, did not understand (or did not have it explained to her by her Counsel) that “the school issue” would effectively follow or fall with the Court’s determination of the parental responsibility issue. This is to say, which was noted a number of times in the course of the lengthy discussion with Counsel and the ICL on the first morning of the trial (the discussion runs to approximately 25 pages of transcript), it was beyond doubt that whichever parent was given sole parental responsibility, the school issue would follow on from that decision. Such was effectively acknowledged by Counsel for both parties, and particularly by the ICL. With the Court having made a determination that the Father should have sole parental responsibility for the detailed reasons given, not least being the completely broken down relationship between the parents, it followed, as I said in the December 2014 reasons (at [276] – [281]) that it was therefore unnecessary to [re]-determine the school issue in relation to X.[6]
[5] After noting in the brief reasons delivered that (a) there was no application before the Court by the Mother in relation to schooling, and (b) I would treat the Mother’s Counsel as making an oral Application, among others I made the following orders: (i) the school issue will be considered to the degree necessary in the context of the orders sought by each of the parties for sole parental responsibility, and (ii) the school issue will be confined to the evidence to be used in the parenting proceedings proper.
[6] See the detailed and lengthy discussion with Counsel for the parties and with the ICL at Transcript, 24th July 2014, pp.4 – 30.
In the light of (i) the procedural history, (ii) the Court’s further indulgence to the Mother to raise the school issue at the final hearing, and (iii) the Court’s final determination of the parenting matters between the parties, contrary to the Mother’s assertion, it is clear that the school issue was traversed (a) at the hearing and in the judgment in December 2013, (b) in the appeal from that decision which was later abandoned, and (c) again at the final hearing. I also note that, following extensive argument by Counsel and by the ICL, it was determined by the Court that the school issue would follow the Court’s determination of which parent should have sole parental responsibility for X. There was no challenge at the time, or subsequently, to the Court’s ruling and ex tempore judgment allowing for the school issue again to be traversed at the final hearing.
I note again that Ms Dautry was represented by experienced Counsel at both of the hearings in late 2013, which was focussed primarily on the school issue, and again at the final hearing in mid-2014, where again the school issue was canvassed at some length. Yet at every opportunity, the Mother seeks to raise it as a matter of contest, even alleging that it was not addressed, or not properly addressed, at either of the hearings to which I have referred.
I also note again that since the Court’s determination of the school issue in December 2013, X has been at the same school since the commencement of the 2014 school year. I accept that the Mother remains determined to re-agitate the issue. I also note that at the final hearing, she proposed that schools other than (omitted) School would be suitable to her (and X). However, it seemed at the final hearing, as it seems now to remain very much a case of any school except that which the Father has sought X to attend, and which was determined in the Father’s favour.
Moreover, Ground 2 of the grounds of appeal refers to a contention that there was no “testing of the evidence by cross examination.” While true in relation to the orders of December 2013 – subject to the various submissions that were made at the interim hearing prior to those orders – in the light of the cross examination of both parties at the final hearing regarding the school issue, particularly in the light of the documentary evidence to which I have referred, it is not correct. Respectfully, it is a case of having one’s cake and eating it too. That is to say, the Mother seeks to agitate the school issue, as well as complaining that it was not, or not properly dealt with at the final hearing, when in fact it was the subject of very significant discussion at the final hearing. Accordingly, whatever the decision in December 2013 (and or the nature or characterisation of it), there was full discussion and cross examination of relevant evidence of both parties at the final hearing in July 2014. And in the light of the evidence given, and the Court’s ruling, the school issue fell for determination (or otherwise) in the light of the sole parental responsibility order.
However, for the reasons given in the judgment of December 2014, following the final hearing, and because the Mother has not provided any relevant evidence, or given any argument at all that would warrant the Court to consider the grounds of appeal in relation to the school issue as being open to challenge, I do not propose to consider further the grounds of appeal regarding the school issue. And in any event, the Mother has not challenged any of the independent evidence from X’s school, recorded in the reasons, regarding X’s poor school attendance when in the Mother’s care, and the independent and otherwise very good reports of X’s progress at school from the school itself.[7] Regrettably, this is another instance of the Mother’s selective use of information, or simply ignoring evidence that does not support her version of events or her contentions.
[7] See, for example, Exhibits D & M.
Finally, and more formally, there is no application that the December 2013 orders should be stayed in any event. Accordingly, the Court need not consider the “school grounds of appeal” further.
A Second Preliminary Issue: The Mother & Social Media
At paragraph 12 of her affidavit filed 27th February 2015, apparently in the context of a contention that I had formally recused myself from hearing the property dispute between the parties, Ms Dautry raised a concern or complaint that her social media profiles had been accessed “from the Judge’s computer.” I confirmed to her during the hearing that no access to any of her social media profiles had ever been accessed from my computer. And should it be relevant or necessary to do so, I did not otherwise access her social media profile. Respectfully, there was more than ample evidence before the Court for me to consider the Mother’s professional qualifications, employment history, and experience more generally.
The Mother stated that she had made a complaint to the Chief Judge of this Court about one of my Associates accessing her social media profile. She advised that the Chief Judge had replied confirming that this access had taken place, and that its purpose was to confirm, or to seek more information regarding, the Mother’s various email addresses.
Three comments only need be made here.
First, no social media profile of the Mother was in any way relevant, or referred, to in any of the decision(s) of the Court. Complaints by the Mother, if that is what they are, about the Court’s findings in relation to her employment and academic qualifications, was only by reference to tendered evidence before the Court and referred to in the December 2014 judgment.[8]
[8] See, for example, Exhibits R, T, V & X.
Secondly, by way of observation only: the Court regularly warns litigants about the use of social media and the ready access by others to it. The Mother, as with any person, is the author of her own information on social media. Making information available through social media necessarily involves, if not invites, others having access to it. If a person seeks to have a social media profile, it seems a tad disingenuous to complain about someone accessing the very information that the provider of the information has made available on social media. In any event, it is not suggested by the Mother that any information on her social media profile was anything other than her contact details and information regarding her areas of professional expertise. How such matters can have any direct relevance to the matters before the Court is not explained.
Thirdly, as already noted the access to social media and the Mother’s “profile” was no basis for anything in the judgment of the Court. For completeness, I also note that the Associate in question left the employ of the Court to travel overseas shortly after judgment was delivered. And as already recorded, the Chief Judge has dealt with the Mother’s concern or complaint in relation to this matter. It has no relevance to the judgment under appeal or any matter referred to in it.
For these reasons, I do not intend to comment further on these grounds of appeal regarding the Mother’s social media profile (Grounds 16 & 17) in the discussion below.
Evidence of the Parties: The Mother’s Evidence
The Mother’s evidence in support of her stay application, summarily stated, was as follows.
Paragraphs 1 – 8 of the Mother’s affidavit, filed 27th February 2015, summarise the parenting arrangements that obtained prior to the final orders of December 2014, whereby X lived with the Mother and spent time with the Father. That history is largely undisputed and need not be repeated.
Paragraphs 10 – 12 refer to the Mother’s lodgement of an appeal against the December 2014 orders, a contention (which is not accurate) that I had formally “disqualified” myself, there is reference to adverse findings made against the Mother in the December 2014 judgment, and finally a reference to access to the Mother’s social media profile. I have already noted the “social media complaint” by the Mother and will say nothing further about it.
Paragraph 13 refers to findings made by the Court in relation to the Mother’s qualifications, employment and studies. I have earlier noted that various exhibits were provided by the Mother about such matters. Her contention that “the evidence presented to the Court did not provide a basis for all of the Judge’s findings as to the above matters.” Respectfully, this is but an assertion, and a blanket one at that. There is no evidence to support it. The reasons of the Court delivered in December 2014 detail the evidence relied upon for the various findings made.
Paragraph 14 recounts or asserts various matters that range from the Court’s restraining order, directed to both parties (Orders 10 & 18 – it is unclear which order in particular is complained about), against taking the child out of the ACT/(omitted) region without giving relevant notice to the other parent. It is unclear what the relevance is of this comment by the Mother, or to what ground of appeal it relates.
The same paragraph also refers to or complains about orders in relation to (a) X’s sleeping arrangements (which arose out of the Father’s concerns about X sleeping in the same room as her older brother, Y, when residing with the Mother, such matters being recorded in the December 2014 reasons), (b) the requirement that the Mother be present whenever the child was in the presence of members of Y’s paternal family (the (omitted) family) (also noted in the reasons), and (c) the Court’s notation warning the Mother that if the child was not returned to the Father there was a risk of a recovery order being made.
The Mother says that these matters or orders were made without reasons, are “oppressive and unnecessary”, and indicate further the Court’s adverse view of the Mother. Again, these are but assertions without substance. Detailed reasons were given for the orders made. The Mother provides no evidence to support her contentions.
Paragraph 15 asserts that the Mother is “extremely concerned about X’s psychological well-being.” This is a constant refrain of the Mother. She has made it many times, including during the final hearing. She made it again in affidavit material filed, without leave of the Court, after the evidence had closed. It was the subject of further comment in the judgment at [287] – [306], which led to that material being struck out.
The December 2014 orders provide for X to attend upon a psychologist for counselling to assist with the transition from primary residence with her Mother to primary residence with her Father. As noted below, the Father deposed in his affidavit, filed 11th March 2015, that pursuant to the Court’s orders, X has been seeing a child psychologist once per week. The Father also deposed to the Mother having contacted X’s psychologist. X has also seen or spoken with the ICL regarding her well-being generally. The Father deposed that neither the psychologist, nor the ICL, have expressed any concern about X’s well-being and adjustment.
Further, annexure C to the Father’s affidavit is a copy of a letter from the Father’s solicitor to the Mother, dated 25th February 2015, in the course of which the Father confirmed that (a) X was seeing a psychologist, (b) he would be guided by the psychologist as to when X might be best placed to travel overseas (but not at the present time in any event), and (c) that it might be beneficial if both parents met with the psychologist to discuss the best course regarding overseas travel.
In her affidavit filed in support of the stay application, the Mother did not refer to either (a) the Mother herself having spoken with the psychologist, or (b) the Father’s solicitor’s letter that was sent by email to the Mother only two (2) days before the Mother filed her application and swore her affidavit. Respectfully, these are serious omissions in the Mother’s material. She refers to the psychologist only at par.18 of her affidavit, where she asserts that X has said that she does not tell the counsellor anything because the counsellor would only tell the Father. Yet at par.17, the Mother had asserted that the Father had not agreed to X seeing a psychologist relating to her well-being. This latter assertion cannot be correct because (a) Order 3 of the December 2014 orders provided explicitly for such counselling and the like, and (b) the Father’s evidence (confirmed in writing to the Mother by his solicitor) that X was seeing a psychologist.
For more abundant caution, the Court requested the ICL to check with the psychologist the various details and advice alleged, although primarily regarding X travelling overseas. Although this aspect of the matter is not before me, contrary to the Mother’s continued assertions, I understand that the psychologist has provided a note of some sort, via the ICL, to the effect that X is doing well in both households. Indeed, from the Court file, the note from the psychologist (Exhibit ICL1) the psychologist states: “[the] child is settled in both homes – not showing signs of distress.”
In the light of this evidence, unfortunately again, the Mother’s assertions about X’s well-being and her concerns about it are disproved (as they were at trial) by independent evidence. But the Mother will not be moved. She continues making unsubstantiated assertions thus causing others (including the Court) to continue to address her claims.
The Mother also expresses concern about the effect of the orders on the sibling relationship between X and her older brother Y. Indeed, she deposed that when they see each other now they frequently fight.
At par.17 the Mother complains about the Father’s control over X’s life since the making of the December 2014 orders, which includes (the Mother says) stopping X from doing ballet, and from her (hobby omitted) lessons. She also complains about the Father changing X’s swimming lesson arrangements. She further complains about the Father not agreeing to X travelling overseas. As I have already mentioned, that is the subject of a more recent Application by the Mother (filed on 20th March 2015). I have already noted that the Father’s solicitor wrote to the Mother precisely about the travel issue by letter dated 25th February 2015 in which it was confirmed that the Father was not opposed to X travelling overseas per se, but not at this time, and that he would take advice from the psychologist on this matter. Again I note that the Mother made no mention of this correspondence from the Father’s solicitor in her material provided to the Court. Her continued selectivity of evidence is troubling.
Paragraph 19 refers to the Mother’s alleged difficulties in relation to her telephone conversations with X. I do not know to what ground of appeal this relates. It is not identified.
Paragraph 20 of the Mother’s affidavit makes assertions regarding X’s well-being, and that she (X) does not like the Father’s partner. I have already referred to the situation regarding X’s well-being, as assessed by school reports (which confirm that she is doing well), and comments by the psychologist and the ICL, which, on the Father’s evidence (and subject to the ICL’s checking with the psychologist) there are no reasons to doubt that X is doing well. As noted in the December reasons, even the Mother acknowledged that X could be telling each parent what he or she would like to hear.
Further, in relation to the regularly repeated allegation that X does not get on well with the Father’s partner, the evidence of the Family Consultant in her report and in the course of the trial, confirmed that X did in fact have a good and close relationship with Ms J.
Paragraph 21 is nothing more than the Mother confirming that she will abide by interim orders. Paragraph 23 is to similar effect.
Paragraph 22 is the Mother’s assertion that her continued limited time with X will, in her view, risk X’s well-being. No evidence is provided to support such an assertion; nor does the Mother point to any part of the December 2014 reasons that show or otherwise indicate relevant error in the Court’s consideration of the orders that were then considered to be in the child’s best interests, as determined on the evidence.
At paragraph 24, the Mother asserts that if the Appeal is allowed (I assume that she intended to say if the stay is not granted) it would be rendered nugatory because of the risk of psychological damage to the child because of her being separated from her Mother and the Mother’s family. This is clearly a factor in relation to the stay application but the paragraph does not specify to what ground of appeal it might relate, directly or otherwise.
Regrettably, the Mother’s assertion of separation from X appears to be at least an over-statement. The child has not been separated from the Mother and the Mother’s family. X spends regular time with her Mother. It is just that it is not as much as the Mother (and the Mother’s family) would wish.
The Father’s Evidence
The Father’s response affidavit, filed 11th March 2015, notes the following.
At pars.6 - 9, the Father records each of the dates, since the December 2014 orders, when X has spoken with the Mother by telephone, and other matters relating to telephone time. Only on a few occasions has the Mother put X’s brother, Y, on the telephone.
At par.14, the Father outlined (together with copies of email correspondence with the Mother: annexure B) what has been done in relation to X’s sporting and cultural activities. He says that it was X’s choice to stop ballet and to take up “(omitted)” dance classes instead. The Father advised the Mother of X’s choice in this regard by email dated 31st January 2015. This information was not provided by the Mother in her material.
At par.15, the Father deposed to matters concerning X travelling overseas. He said that the advice from the psychologist was against the child undertaking that travel at the present time. He also said that the psychologist gave the same advice to the Mother that she gave to the Father about this matter. As already noted, the ICL has been requested to check with the psychologist on that advice.
Paragraph 17 refers to annexure D to the affidavit, which is a copy of X’s most recent school report as well as copies of correspondence between the Father and the school. It is sufficient for current purposes to note that the school report indicates no problems with X, and an email from the Assistant Principal to the Father, dated 4th February 2015, confirms that X’s teacher, and the Assistant Principal, “are both delighted with the way X has settled into (omitted).”
Respectfully, the independent evidence from the school, in my view, goes a very long way in disproving the range of assertions made by the Mother about X’s well-being. Either the school is completely negligent in its attention to the child’s care and well-being, or it accurately records how well X is doing – contrary to the Mother’s persistent assertions.
Finally, at pars.18 and 19, the Father confirms that he is discreet in his dealings with X’s psychologist, and that in the light of the Mother’s concerns, the psychologist has confirmed to the Father that she has not seen any signs of relevant distress as asserted by the Mother.
In relation to the Mother’s further (and continued) assertion of X having a poor relationship with the Father’s partner, as already recorded, the Family Consultant noted it to be a good and close relationship between X and Ms J. The Father deposed that the relationship between his de facto partner and the child remained close (and had grown stronger since the December 2014 orders), and that he observes X to be light-hearted and happy in his residence with his partner.
Principles in relation to Stay Applications
For current purposes, it is sufficient to note the following from the Full Court’s decision in Aldridge & Keaton (Stay Appeal), to which I have earlier referred. At [17] – [18], the Court said:
[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.
I emphasise the discretionary nature of the judgment under appeal particularly because, of the substantive grounds of appeal (grounds 7 – 21), Grounds 7, 8, 10, 11, 14, 15, 19, 20 and 21 all refer specifically to either the weight given to certain evidence, and/or the Court’s exercise of discretion in the light of that evidence. Ground 22 is somewhat curiously framed. It states: “The Grounds of Appeal have been prepared without access to the Transcript of the proceedings and it may be necessary to amend such Grounds upon these Reasons for Judgment becoming available.” I confess to being unclear as to what this Ground says or means. The Mother clearly has a copy of the reasons for judgment that were delivered on 18th December 2014. I will say no more about this Ground of Appeal.
Consideration & Disposition
At the outset, because at least nine (9) grounds of appeal deal with or refer to matters of discretion and or the weight given to evidence, and because the Mother refers to no matter of principle as a point of reference for such matters, the following discussion should be framed by or be considered by reference to principles of long-standing which I now note.
First, in House v R, the High Court (Dixon, Evatt & McTiernan JJ) said:[9]
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
[9] House v R (1936) 55 CLR 499 at pp.504-505.
To somewhat similar effect are the comments by Stephen J in the later High Court judgment in Gronow v Gronow, where his Honour said:[10]
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.
[10] Gronow v Gronow (1979) 144 CLR 513 at pp.519-520.
More recently still, in Whisprun Pty Ltd v Dixon, the High Court made various comments about the conduct of trials and the review of them by appellate courts. First, Gleeson CJ, McHugh & Gummow JJ said, at [62]:[11]
A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.
[11] Whisprun Pty Ltd v Dixon (2003) 200 ALR 447. At [18], their Honours also noted the all too often forgotten counsel that “the best advocacy is selective and economical.”
Although in dissent in the result, Kirby J noted the following in relation to appellate intervention. At [94] – [96], his Honour said (internal citation omitted):
[94] The common features of the United States, New Zealand, English and Canadian formulas is therefore that they insist upon appellate restraint; require a demonstration of error; and oblige that such error be "clearly", "compellingly", "palpably" or "plainly" shown. The rule of restraint is not confined to cases where the decision at trial rests, wholly or in part, on conclusions about the credibility of a party or of an important witness. It applies generally to delineate the respective functions of trial and appellate tribunals.
[95] Reasons for restraint: Several considerations have been identified as underpinning the rule of restraint. Such considerations include:
(1) The relative scarcity of resources available to the courts to resolve the disputes of litigants and the need to deploy them efficiently;
(2) The normal expectation that such disputes will be resolved finally at trial and should not be regarded as merely provisional;
(3) The need for appellate respect for the autonomy and integrity of primary judges in the discharge of their powers within the scope of their functions;
(4) The acknowledgment by appellate judges of the expertise of many primary decision-makers and the advantages which they often enjoy in hearing and seeing witnesses and in being exposed to the evidence in a case in its totality;
(5) The recognition that appellate procedures are not always well suited to the review of large masses of transcript and are often selective and "telescopic" in their examination of such materials; and
(6) The acknowledgment that the reasons for a primary decision can only ever represent a summary of the main elements that have led the decision-maker to his or her conclusions.
[96] In every case, the appellate court must reconcile the rule of restraint (enhanced where a decision rests on a credibility assessment that was reasonably open to the primary decision-maker) and the need to protect parties against clearly flawed primary decisions, illogicality in reaching them and injustice that demands that the appellate court exercise the functions of review conferred on it by the legislature.
In the light of these general principles, I note the following in relation to the Mother’s Grounds of Appeal.
As a general proposition, in almost all instances of the Mother’s Grounds of Appeal, she does not identify what the evidentiary flaw or legal error is in any of the findings or conclusions reached by the Court in the December reasons and orders that would warrant or otherwise justify appellate intervention. Put another way, the Mother has neither shown nor referred to any relevant error that would indicate that her prospects of success in the appeal are relevantly arguable. Dissatisfaction with a result, which is the case here, of itself, is insufficient to warrant appellate intervention. Accordingly, as a general and preliminary assessment of the strength of the appeal, in my view, the Mother’s prospects are poor.
I turn then to the individual grounds of appeal.
Ground 7: That the trial Judge was in error in the exercise of his discretion as the result embodies in his orders is plainly unreasonable and manifestly unjust.
Apart from her own dissatisfaction with the orders of the Court, and the findings adverse to the Mother, she does not identify either what evidence should not have been relied upon, or what evidence or principle should have been considered or applied that would have brought about a different result. Absent such matters, the Court has no way of knowing the error alleged by the Mother. The reasons speak for themselves, including the large body of documentary evidence, as well as the evidence of the parties and the Family Consultant relied upon. In what way the result was “plainly unreasonable and manifestly unjust” is not explained by the Mother.
Ground 8: That the trial Judge was in error in the exercise of his discretion placing undue weight upon his severely adverse findings as to the Mother’s credit that this issue has excessively impacted upon his consideration and determination as to what is in the best interests of the child and is in effect punitive of the Mother.
Again, the Mother provides nothing more than assertions as to what the result means to or for her, as opposed to the Court’s regard to the evidence of the parties, other witnesses, and in particular the evidence of the Family Consultant in determining what orders were in the best interests of the child. The Mother does not point to any statutory consideration or other relevant matter that was not referred to or considered (or considered wrongly) by the Court. Indeed, the Court’s findings in relation to credit regarding the Mother’s evidence, in my view, (a) properly had regard to relevant authority where there is a distinction drawn between an incorrect fact asserted by a witness and the unreliability of that witness (such as the principles set out by the Full Court in Adamson v Adamson)[12], and (b) there is no evidence pointed to or provided by the Mother that would or could challenge the findings made in relation to the Mother’s credit. Indeed, in the light of the lack of evidence provided in the current matter, and the independent evidence noted elsewhere in these reasons, such as the Father’s correspondence with the Mother regarding X’s ballet lessons, and other matters noted, if anything, there remains a consistency in the Mother’s practice of making unsubstantiated assertions as well as ignoring evidence available to her (e.g. X’s school reports) which does not support her assertions.
[12] Adamson v Adamson (2015) 51 Fam LR 626 at [90] & [103].
Ground 9: That the Trial Judge permitted his severely adverse view of the Mother to impact on his decision to such an extent that he made a notation that a recovery order issue in Chambers without further notice if the Mother failed to return the child to the Father in accordance with his Orders in circumstances where there was no evidence that the Mother had previously failed to comply with Orders relating to the Father spending time with the child, thereby in essence denying the Mother natural justice
This ground of appeal, like many others, is an assertion that refers to a notation, not an Order. The reasons for the Court’s concern that gave rise to the notation (and of course all the Orders) is set out in the reasons in detail. The Mother does not explain how she has been denied “natural justice”. Nor does the Mother explain what aspect in relation to any “natural justice” rule has allegedly been breached. Again I note that the Mother was represented at the Final Hearing by experienced Counsel. No relevant error either of fact or law is identified by the Mother.
Ground 10: That the Trial Judge was in error in the exercise of his discretion failing to place any or sufficient weight upon the uncontroverted evidence that the Mother had been the primary carer and at times, the sole carer of the child essentially from the time of the child’s birth.
The reasons make plain that the Court was conscious of the parenting arrangements involving X throughout her life. The Court also makes plain by reference to evidence and principle the reasons why it was necessary to change the residence of the child from the Mother to the Father. Again, no error of law or fact is shown by the Mother. There was due and proper consideration of prior parenting arrangements; the determination of the Court and the Orders made were based on detailed evidence and consideration of principle.
Ground 11: That the Trial Judge was in error in the exercise of his discretion failing to place any or sufficient weight upon the impact upon the child of separation from her half sibling Y in circumstances where the children had been members of the same household since the child’s birth.
There is detailed consideration in the reasons of the potential impact upon X being separated from her half-brother Y. It was a factor considered by the Family Consultant in her Family Report. The ground of appeal is couched in terms of absolutes and does not recognise that provision was made in the Orders for X to spend regular and consistent time with her Mother at which time it would be enable her also to spend time with her brother.
Ground 12: That the Trial Judge was in error in failing to provide reasons as to why he did not determine that the child should spend equal time with the parties, that the Mother’s time with the child should be significantly less than equal time.
In a judgment that is in excess of 90 pages and more than 300 paragraphs, respectfully it is difficult to see in what way the Court failed to provide adequate or proper reasons why an equal time arrangement was not appropriate. By repeated reference to the evidence before the Court, and by following the statutory pathway the Court outlined at length why the Orders for a change of residence and the “time with” arrangements between X and her Mother were considered by the Court to be in X’s best interests.
Ground 13: That the Trial Judge was in error in determining that there was a risk to the Father’s relationship with the child in the event that she continued to reside in the Mother’s care in circumstances where the Mother had clearly encouraged the relationship between the child and the Father prior to the time when interim Orders were made in late 2013 and notwithstanding that the Father continued to have a “good and close” relationship with the child from this time onwards.
In addition to the usual comments about the Court having relied upon the evidence before it, and having had regard to the legislative pathway prescribed, two comments only need be made here. First, among other things the Court relied upon the evidence of the Family Consultant who noted the risk to the Father – child relationship in the circumstances outlined in the Family Consultant’s evidence and referred to in the reasons. Secondly, this ground of appeal, like many others, reads more like a submission than pointing to any relevant error of fact or law. Finally, no error is specifically pointed to in the reasons; no evidence is referred to in support of the Mother’s assertion.
Ground 14: The Trial Judge was in error in failing to place sufficient weight on the fact that Ms J who had been the Father’s de facto partner for some twelve months, with whom the Judge was highly impressed, would now be playing a significant role in the care of the child as opposed to the Mother.
It is a requirement under the legislative pathway to consider other persons with whom the child would have a relationship (other than the parents) who, in this instance necessarily includes the Father’s de facto partner, Ms J. There was no adverse comment about Ms J by the Family Consultant in her observations and comments (in her report and in her oral evidence) in relation to Ms J. As the Mother notes in this ground of appeal, the Court regarded Ms J as an impressive witness which assessment the Court was perfectly entitled to make. The Mother does not set out or refer to any reason why the Court’s findings in relation to Ms J should not have been made and or how the Court did not take into account Ms J’s role in the care of X in the Father’s household. And again I note that the Family Consultant recorded the good relationship between X and Ms J, contrary to the Mother’s assertions.
Ground 15: That the Trial Judge was in error in the exercise of his discretion in failing to place sufficient weight upon the fact that the Father had made no criticisms of any substance of the Mother’s care of the child from the time of her birth.
Comments previously made in relation to ground 10 apply equally to this ground here and will not be repeated.[13]
[13] Grounds 16 and 17 refer to the Mother’s complaint regarding accessing her social media profile. These grounds have been dealt with earlier in these reasons.
Ground 18: The Trial Judge failed to provide any cogent reasons as to why he would not reconsider his decision made 20 December 2013 to change the said child’s school in circumstances there was now evidence before him that a Counsellor proximate to the time of this decision had made a recommendation that the child’s school should not be changed.
The issue of X’s schooling arrangements has been discussed earlier in these reasons and will not be canvassed further here, save that the factual and legal bases for the decisions made by the Court are set out in detail in each of the judgments delivered involving these parties.
Ground 19: That the Trial Judge was in error in the exercise of his discretion by failing to place any or sufficient weight upon the Father’s failure to pay child support to the Mother in respect of X for a period of some seven months whilst X was primarily in her care because he had been previously credited with paying X’s private school fees to attend (omitted) School (a situation from which he has now reneged) that this had apparently created a credit which obviated him from paying child support for that period of time.
It is difficult to understand, in the absence of reference to any particular section of the reasons of December 2014 what this assertion/ground relates to. Among other things exhibit S refers to a bundle of documents from the Child Support Agency which includes a transaction statement indicating no amounts outstanding (by the Father) as at 7 August 2014. Again, in the absence of specific detail or reference to facts, principle and findings in relation to the reasons, it is quite unclear what relevance this ground has to the Court’s determination as to the Orders that were (and are) in X’s best interests.
Ground 20: That the Trial Judge was in error in the exercise of his discretion in that he failed to place sufficient weight upon the evidence that the child had only spent limited time overnight with the Father since the time of separation in determining the amount of time which the child should now spend with the Father upon an overnight basis.
Again, it is sufficient simply to refer to the detailed evidence before the Court and the consideration of statutory and other legal principle to determine what orders were in X’s best interests. The Mother does not point to any specific error of fact, evidence or law in the reasons to support her contention.
Ground 21: That the Trial Judge was in error in the exercise of his discretion in failing to make orders which provided for a graduated basis for the child to spend time with the Father.
The comments made earlier in relation to grounds 10, 12, 13, 14, 15 and 18 are all sufficient answer to this ground of appeal.[14]
[14] Ground 22 has been referred to earlier in these reasons.
Otherwise I accept the written submissions of the Father filed 20th March 2015.
Conclusion
By way of summary, and by reference to the principles set out by the Full Court in Aldridge & Keaton (Stay Appeal), I note the following.
In my view, the Mother has not established any relevant basis for the grant of a stay of the orders.
The Father is entitled to the benefit of the judgment and orders made in December 2014, and to presume the correctness of the reasons and judgment there given.
The filing of the Mother’s appeal is insufficient, of itself, to grant a stay.
Although the Father questions the Mother’s bona fides in lodging the appeal, and accepting that the Mother – as she has done at various times in the course of the proceedings – did not refer to relevant evidence that she had available to her (e.g. that X was seeing a psychologist), for current purposes I am prepared to accept the Mother’s bona fides, albeit with some significant caution and hesitation. I do so primarily because, even on the documents before the Court in the current Application, the Mother has continued her practice, evidenced at trial, of dissembling and or ignoring evidence that is available to her but which she chooses not to refer to because it does not assist her case.
In addition to what is set out in the December 2014 judgment, one current example of the Mother’s unfortunately typical approach to matters of evidence must suffice: the Father provided a copy of an email to the Mother in late January 2015 (which is annexed to his affidavit opposing the application) in which he comprehensively set out, among other things, X’s preference for a certain kind of “(omitted) ” dance class instead of continuing with ballet classes. Yet in her material filed in support of the stay, the Mother complains about the Father “stopping” X from continuing with ballet. For this and similar reasons, as I did during and following the final hearing, I have come to treat the Mother’s evidence and claims and assertions (the evidence is regularly very limited, while the assertions are detailed) with significant caution and circumspection.
Because I propose to refuse the stay application, in my view it is unnecessary to consider any proposal or consideration about the terms on which a stay might be made, balancing matters of convenience and the like.
I accept the Father’s submission to the effect that, in the event that a stay was not granted the appeal would not be rendered nugatory. Indeed, given that the child lives with one parent and spends significant time with the other, the only likely relevant change would be as to “time with” and perhaps change of school.
Because of the lack of evidence, and the lack of clarity as to the [alleged] errors, provided by the Mother, in my view, the prospects of success of the appeal are low.
As already noted, a significant consideration is the need to limit the frequency of change in X’s life. Having changed her primary residence last December, to accede to the Mother’s stay application would require both a rejection of the large body of evidence upon which the Court relied to make the December 2014 orders, and would lead to another very significant change in this young child’s life. In my view, this is a compelling reason not to accede to the Mother’s stay application.
I have no knowledge as to when the appeal is likely to be heard. In any event, the existing orders provide for regular and significant time for the child to spend with the Mother, while remaining primarily resident with the Father.
In all the circumstances, both in December 2014, and equally so now, I consider the orders then made, and the rejection of the Mother’s application (and the very significant changes it would cause) to be in X’s best interests.
For these reasons, the Mother’s stay application, filed 27th February 2015, must be refused.
I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 17 April 2015
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