Donald and Mott (Stay Application)

[2016] FCCA 2010

FEDERAL CIRCUIT COURT OF AUSTRALIA

DONALD & MOTT (Stay Application) [2016] FCCA 2010

Catchwords:
FAMILY LAW – Stay application – basic principles – significant history of litigation between the parties – issues raised by Mother in relation to the Father’s mental health but which were also dealt with at trial – questions about the efficacy of “protective measures” regarding the Father’s mental health status – Mother’s submissions failed to address (or even refer to) principles in Rice & Asplund – considerations in relation to “best interests” of the child and his regular involvement in litigation between his conflictual/parentally dysfunctional parents – considerations also in relation to proper use of public resources.

Legislation:  

Family Law Act 1975 (Cth), s.45
Federal Circuit Court Rules 2001 (Cth), r.29.04

Cases cited:
Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Anderson v Senior (Stay Appeal) [2013] FamCAFC 152; (2013) 279 FLR 399; (2014) 50 Fam LR 21
AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Carriel v Lendrum (2015) 53 Fam LR 157
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303
Gronow v Gronow (1979) 144 CLR 513
Jennings Construction Ltd v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681
K & B (2006) FLC¶93-288
Poisat & Poisat (2014) FLC ¶93-597
Rice & Asplund (1979) FLC ¶90-725

Applicant: MS DONALD

Respondent: MR MOTT

File Number: CAC 644 of 2012

Judgment of: Judge Neville

Hearing date: 12 February 2016

Date of Last Submission: 27 April 2016

Delivered at: Canberra

Delivered on: 11 August 2016

REPRESENTATION

Counsel for the Applicant: Ms A Tonkin

Solicitors for the Applicant: Infinity Legal

Solicitor/Advocate for the Respondent: Ms J Lloyd

Solicitors for the Respondent: Jeanine Lloyd & Associates

ORDERS

1. The Mother’s Application in a Case, seeking a stay of the Orders made on 19^th November 2015, be dismissed.

2. The Mother is to pay the Father’s costs of the Application in a Case, either as agreed or taxed.

IT IS NOTED that publication of this judgment under the pseudonym Donald & Mott (Stay Application) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT CANBERRA

CAC 644 of 2012

MS DONALD

Applicant

And

MR MOTT
Respondent

REASONS FOR JUDGMENT

Introduction

1. On 26^th September 2014, this Court made final parenting Orders in relation to now 9 year old X.

2. Some eight months or so after those final Orders were made by Application filed on 12^th May 2015, the Mother (who was the Respondent in the substantive proceedings but the Applicant in the current Applications) filed an Initiating Application that sought to re-visit those Orders. 

3. On 19^th November 2015, the Mother’s Application was dismissed, primarily on the basis that application of the principle(s) from Rice & Asplund (and later authority) determined that it was not in the child’s best interests for the matter to be re-litigated.[1]  The Court also held that the matters raised by the Mother in support of her further Application did not constitute a sufficient change in circumstances to warrant everyone but especially the child again being dragged through another round of highly contested litigation. 

   [1] Rice & Asplund (1979) FLC ¶90-725. See also, more recently, Poisat & Poisat (2014) FLC ¶93-597 and Carriel v Lendrum (2015) 53 Fam LR 157.

4. Further, in the light of the significant litigious history between the parties, the Court cannot be confident in any relevant way that, for example, if sole parental responsibility was given to the Mother, she would promote X’s relationship with his Father.

5. Further and of quite some significance, in the course of the reasons delivered for refusing the Mother’s Application, the Court noted that the same issues that were canvassed at length at the trial in September 2014, were again laid out in the Mother’s more recent Application.  Questions of degree and perception are, of course, relevant, as is the history of the contest, its nature and the various, entrenched and regularly similar incidents associated with it.

6. Like beauty, questions of change of circumstances will often be in the eye of the beholder especially where, as here, parties are in close and regular contact and who have a turbulent history that they share.  Indeed, accepting that violence of any sort is not and will not be tolerated, it might be said that the level of turbulence between the parties (which was canvassed at some length during the trial) makes (a) questions of aggression on the Father’s part in this instance (among other things), and (b) the Mother’s acutely protective nature towards the child (plus other matters mentioned in each of the judgments delivered thus far), rich fodder for ongoing litigation into the future.  This is even more likely if, as here, the parties seem unable or unwilling to disentangle their emotions (and other things) from what each views as being in X’s best interests, and to curtail their emotive and other outbursts and further if they are unable or unwilling to accept doubtless prudent advice that most wise lawyers would give that steers their clients away from rather than towards Court and that litigation is a very poor and hugely expensive way to co-parent.  The Court, of course, assumes that the parties have been given this advice – certainly the Court has referred to it in passing in the regular engagement with the parties and the lawyers over the years of litigation.[2]

   [2] Indeed, on the last occasion the matter was in Court, the Father’s lawyer indicated her intention to cease to act for the simple reason, she said, that the Father could no longer afford to litigate using a lawyer.  He had, she said, exhausted his resources in resisting the Mother’s regular resort to litigation.

7. The Mother’s Application for a Stay filed 8^th December 2015, relates to the Orders made by this Court on 19^th November 2015 that dismissed her Initiating Application, filed on 12^th May 2015.[3]

   [3] The Orders of November 2015 also slightly varied the Final Parenting Orders that were made in September 2014.

8. For the reasons that follow, the Mother’s Application for a Stay should be refused.

Submissions on behalf of the Applicant Mother

1. The Written Submissions on behalf of the Applicant were helpful and typically detailed from the experienced Counsel involved.  In passing and in no way critically, I note that different Counsel was used for this Application to the Counsel retained for the original trial in 2014.  I should also note that there is a difference between the Mother’s Orders Sought as set out in Counsel’s submissions and in the Orders Sought in the Amended Notice of Appeal. 

2. Order 1 in the Amended Notice of Appeal is the same as the Minute of Orders Sought (and Counsel’s Submissions) but Order 2 in the Amended Notice of Appeal seeks that “the Mother’s parenting application filed on 12^th May 2015 be remitted to the Federal Circuit Court for re-trial before a judge other than Judge Neville.”[4]  The difference between the two sets of Orders does not assist.  Attention to detail is important; lack of attention to detail inhibits the work of the Court, wastes time (a precious commodity in the efficient use of public resources) and ultimately delays the just and efficient resolution of disputes before the Court.[5]

   [4] I simply note here that, as would be well known in the local profession, once the Appeal is dealt with in the next however many months, it will certainly be the better part of two years before any re-trial might reasonably be able to take place.  Conceivably, if the Mother’s appeal is successful, the parties could be waiting the better part of three years before a further, final determination.  By that time, X will certainly be well versed or doubtless even more deeply embroiled in the litigation and all the risks that this will necessarily entail for him and for his parents.  Doubtless these matters have been strongly pointed out by the lawyers for the parties.

   [5] Generally, in relation to the matters just raised regarding the efficient use of public resources, see the comments by the High Court in the seminal case of AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at [5], [27], [30] & [35] (French CJ); [92] – [93], [95], and [113] – [114] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).

3. Such a disjuncture in the documents filed on behalf of the Mother is a little like but in my view not as troubling and inexplicable as, the Mother’s submissions in relation to her 12^th May 2015 Initiating Application.  As already noted, the Mother’s Application was filed only eight months or so after the final Orders were made in September 2014; in it she sought to ventilate and have Orders made in relation to, among other things, (a) the child’s time with the Father, (b) the school the child attends, (c) matters relating to or arising out of the Father’s admitted mental health issues and the treatment for same, and (d) issues of family violence.  Each of these matters was addressed at length in the course of the final hearing over the course of three days.  Notwithstanding such a thorough examination of these matters at the final hearing and the making of final Orders (which were not appealed), in the Mother’s submissions in support of her Application to re-visit each and all of these issues, she did not address or even refer to the basal principles in Rice & Asplund.  It was never explained why such a fundamental omission had occurred.  Apart from anything else, to not have the Mother’s submissions on such a critical matter made the Court’s determination of whether her May 2015 Application should be permitted to proceed even more problematic.

4. Remarkably if not astonishingly, in my view the Mother (or her solicitor) has exhibited a certain “boldness” (other words are apposite) to challenge the Court’s decision not to allow her Application to proceed on the basis that the Court “acted upon the wrong principle” in circumstances where, in her own submissions, she provided no reference to relevant principle for the Court’s consideration at all. 

5. The Court identified the relevant principles in Rice & Asplund and referred to and discussed a series of Full Court decisions that have, in more recent times, considered that seminal case.  As already observed, the Mother’s submissions made no such references.  The Father’s submissions, conversely, properly referred to Rice & Asplund and the application of principle from that case to the facts and circumstances of the current matter.  Thus his submissions did not suffer from the same deficiency as did the Mother’s.

6. The written submissions in the current Stay Application provided as follows (it is as well to set them out in full, even though the primary issue for the Mother, which was highlighted in those submissions and in oral submissions, related to an incident between the Father and X on (omitted) 2015 the details of which were set out in the judgment under appeal dated 19^th November 2015), thus:

   1. The applicant mother filed an initiating application on 12^th May 2015 seeking to suspend final parenting orders (made on 26^th September 2014) and seeking interim orders for sole parental responsibility and for the child’s time to be supervised with the respondent inter alia.  A Notice of Risk was filed by the applicant on 12^th May 2015. Interim Orders were made by Consent on 5^th August 2015 which varied the orders of 26^th September 2014. Order 9 of those Orders suspends “all previous orders in respect of the child spending time with his father.”  On 19^th November 2015 the Court made orders varying in part the Orders made on 26^th September 2014 and otherwise dismissing the mother’s initiating application. The applicant filed a notice of appeal on 8^th December 2015 and an application in a case to stay the Order made on 19^th November 2015. On 10^th February 2016 the applicant filed an amended Notice of Appeal.

   Orders sought

   2.  (a)     Orders 1 to 10 of the Orders made by Judge Neville on 19^th November     2015 be stayed pending appeal.

   (b)     The Consent Orders entered into by the parties on 5^th August 2015 shall remain in force until further order.

   Authorities

   3. The principles applicable in an application for a stay of orders in matters concerning children are well settled. In Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 the Full Court considered an appeal from the refusal of the (then) Chief Federal Magistrate to stay parenting orders. The Chief Justice, Boland and Crisford JJ set out the relevant principles at paragraph 18 thus:-

   “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 NSWLR 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.”

   4.  The Full Court in K v B (2006) FLC 93 – 288 at paragraphs 18 – 20 discussed the relevant law. At paragraph [20] the Full Court referred to the decision of a differently constituted Full Court in EJK v TSL (No 2) [2006] 35 Fam LR 590 where that Court (at paragraphs 16 – 17) applied the principles espoused by Nygh J in Clemett (supra) at 76,175 as follows:

   “In determining whether a stay should be granted the welfare of the child is the paramount consideration. It is especially desirable that the frequency of any changes in the custodial arrangements relating to the child should be limited as much as possible. If the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt with within a reasonable time and the present circumstances of the child are satisfactory, it will be appropriate to grant a stay of proceedings for at least a short period.”

   5.  In Kwon v Lee [2006] FLC 93 – 287 the Court determined that the best interests of the child is not the paramount consideration in determining a stay application. Noting however in Inward v Barnett [2008] FMCAfam 1446 (2nd December 2008) FM Neville said at [7] (ii) to (iii) inter alia:

   “7.        (ii)     A stay does not constitute a “parenting order” per se and thereby immediately or directly invoke the operation of s.60CA regarding the best interests of the child being paramount;

   The interests of the child are, nonetheless, a critical consideration.

   Discussion

   6.     Hearing of the appeal

   Ms Heinze solicitor for the applicant made inquiries of the Eastern Appeals Registry regarding the likelihood of the appeal being heard. She was advised “the general time is 15 to 18 months from the date of filing of the appeal books unless the matter is expedited.”  Thus there is likely to be significant delay in the appeal being heard.

   7.  Interests of the children [sic]

   It is submitted that the interests of the child are critical in this matter and in the interim he should be protected from further abuse whilst in his father’s care. The interim orders were agreed to by the parties on 5th August 2015 in circumstances where the father had recognized (albeit too late) that he had been unwell and was unable to ensure the child’s safety. The report of Dr S dated 5th May 2015 conveys the significant deterioration in the father’s mental health in particular from November 2014  and confirms that the “serious nature of his mental illness” “significantly contributed to” the assault of his son in March 2015.  This was at a time when the father procured a report from Dr A dated 26th November 2014 where the doctor deposed to having assessed the father and determined that he was “currently psychiatrically stable and capable of fulfilling increased parenting demands.”

   8.  Notwithstanding the Orders made on 26th September 2014 provided a mechanism to ensure the child was protected if the father’s mental health deteriorated, the father failed to alert the mother and/or the Family Consultant in relation to the deterioration in his mental health in November 2014 and continued to present himself to the mother that he was well and able to parent.  It was not until 1st April 2015 (after the March 2015 assault) that the father advised the mother in writing that he was “currently mentally ill and have been actively pursuing medical help for my illness prior to the event in question (Saturday).”

   9.  The mother deposed to further incidents of family violence other than the assault which occurred on 28th March 2015 including the father punching the side of a beanbag next to the child’s head so that the child would stop crying,  the father hitting the child on more than one occasion, the father “whacking the child on the back” with a large foam water gun, the father threatening to strangle the child,  the father riding over the top of the child’s bike and throwing the bike across the road.  The child advised his mother that no one could protect him at his Daddy’s house. In addition the child advised his mother that the father’s partner Ms S and the father had engaged in a verbal argument and she had taken her two children and left leaving X in the care of his father who was mentally unwell. 

   10.    The mother deposed to being subjected to verbal abuse and harassment by the father in May 2015.  The mother deposed to a further incident of family violence occurring on the weekend of 27th and 28th September 2015 wherein the father became angry and hit the child and the child of his partner across the arms. He then took the child’s belt (which the child had removed) and started swinging it near the child’s face, hitting the wall next to the child’s face.  The father had unilaterally determined that his partner was not required to supervise his time with X on occasion notwithstanding that his partner had signed an undertaking that she would supervise the child and protect him from harm.

   11.    Subsequent to the Orders of 19th November 2016 the mother deposed to further incidents including that the child complained that his father “wees on him” whilst the child is in the shower.  The father withheld the child at the midpoint changeover in January 2016 until the mother agreed to have a conversation with the father.  The child reported to the mother that the father said “we all know who needs a good punch in the face.”  In February 2016 he refused to allow the mother to speak to the child by telephone and on one occasion disconnected the call whilst the mother and child were speaking. The father continues to abuse the mother saying “I’m going to call Marymead because you’re putting the needs of the foster kids before your own son” and “fuck you and fuck your mother’s head” and “you’re a cunt.”  The child is becoming increasing verbally and physically aggressive towards his mother and has attempted to slap her in the face.

   12.    The father has underplayed the serious [sic – “seriousness”] of the March 2015 assault on his son claiming that he “did not physically harm” the child “nor attempt to do so” and “there was no evidence of physical harm.” He claimed he was not charged by the police with “causing harm to X.  If there had been harm I would have been charged with more than common assault.” The father was charged with common assault and the NSW police took out an Apprehended Violence Order on behalf of the child on 28th March 2015 the Order being made for a period of 12 months.  

   13.    Notwithstanding the father’s attitude in relation to his role in the assault, he admitted the facts set out in the police statement of facts annexed to his affidavit.  The Court made an order on 26th May 2015 that Mr Mott be dealt with under Part 3 of the Mental Health (Forensic Provisions) Act NSW and dismissed the charge and discharged Mr Mott into the care of Dr S on condition that he take prescribed medication, attend counselling and treatment in accordance with medical advice nominated by Dr S and Dr A.

   14.    Mr Mott [sic] asserts he has not used physical violence against X but admits to physically disciplining X by smacking him on the hand and more recently when the father has been unwell.     Mr Mott [sic] agreed that he hit X with “foam” but justifies that by saying this was in response to “him hitting me with it.” He said his reaction was influenced by the illness he was experiencing.  By inference he accepts the mother’s assertion through the child that when the child was making a noise and being cheeky his father said if he did not be quiet “that he was going to strangle me.”  The father said in response “this event shocked me.  It actually prompted me to go straight back to the GP who then referred me to see the psychiatrist.”  He agreed that the event concerning the bike deposed to by the mother did happen and he said “once again I over-reacted. My reaction was influenced by the illness I was experiencing.”  He said “beside the mental illness there has been no significant change to my circumstances.”

   15.    The father admitted to Dr S that he had had “uncontrolled outbursts of anger towards his son (and his partner’s children) had punched a bean bag in front of his son, had yelled at his son and hit his son with a foam sword. He claimed his uncontrolled anger and aggression was uncharacteristic. He told Dr S that since late November 2014 he had been unwell with persisting distressing emotional symptoms. Dr S recorded the following symptoms inter alia “a sense of worthlessness, suicidal thoughts, adhedonia, perceptual distortions, outbursts of anger, difficulty controlling emotions, agitation and irritability, overwhelming anxiety and significant sleep deprivation.” Mr Mott was prescribed lithium carbonate 1500 mg and moclobemide (150mg). Mr Mott obtained a further short report from Dr A dated 19th August 2015. 

   16.    The father refuses to allow the mother to engage a psychologist to assist the child other than engaging with the school counsellor.  The mother raised significant concerns about X self - harming following time with his father.  The father claims the request by the mother that X receive counselling confirms his view that the mother’s conduct in this regard constitutes “serious psychological harm.” 

   17.    Given the likely delay in the appeal it is in the child’s interests not to expose him to the risk of continuing abuse but ensure by continuing the interim orders the child maintains a meaningful relationship with his father.

   18.    Bona fides of the applicant

   There is no evidence to support a conclusion that the mother lacks bona fides. The Court in September 2014 made protective orders to ensure the child was not at risk of harm. The Court at first instance found that the protective action of the mother was very well intentioned but also stifling.

   19.    Grounds of appeal

   The gravamen of the appeal is that such was the serious nature of the assault upon the child on 28th March 2015 that the Court erred in not re-opening the matter and hearing evidence in regard to the March 2015 assault, the continuation of family violence perpetrated on the child, the impact on the child of the father’s deterioration in his mental health and whether it was in the child’s best interests to continue the shared care arrangement or minimize the risk of abuse to the child whilst in his father’s care.

   20.    During the initial proceedings the Court heard evidence that the father’s mental health had been stable for a number of years. It is unclear whether the diagnosis of Biploar [sic] Disorder II was accepted by the Court however notwithstanding that the Court found that the father had been managing his mental health reasonably well and that “his mental health will be managed further by Court orders.”  The Court made protective orders in an attempt to ensure the child would be protected from harm should the father’s mental health deteriorate.  Those Orders proved to be an ineffective mechanism to protect the child and required review.

   21.    Notwithstanding the Court’s finding that such was the nature of the relationship between the parents that they should have nothing to do with each other and to this end were required to mediate any disputes, the Court implemented a shared care arrangement with the increase in the father’s time being contingent upon the stability of his mental health.  It is apparent that between November 2014 and March 2015 that the father did not alert the mother or the head of the Family Consultants to the serious deterioration in his mental health and the impact that was having on the child. Such was the seriousness of his condition that the criminal charge of assault was dealt with under the Mental Health (Forensic Provisions) Act.  This would suggest that the father was incapable of controlling his conduct at this time, exposing the child to significant risk of abuse.

   22.    Granting of the stay on terms fair to all parties

   The mother seeks an order that Orders 1 to 10 of the Orders made by Judge Neville on 19th November 2015 be stayed pending appeal and the Consent Orders made on 5th August 2015 remain in force until further order.  It is submitted that the Consent Orders minimize the risk to the child of further exposure to family violence whilst preserving the relationship between father and child pending the appeal.

Submissions on behalf of the Respondent Father

1. The Written Submissions on behalf of the Applicant are set out in full as follows:

   1)   The father opposes the Orders Sought by the Applicant Mother and seeks that this matter be finalised in terms of the Orders of 26^th September 2014.

   2)   It is submitted that there is no new evidence to overcome the Rice vs Asplund issue.

   3)   The parties and in particular the father, are financially and emotionally exhausted by this litigation.

   4)   If the child X is indeed exhibiting negative behaviours in his mother’s care these are likely to be attributable to his mother’s way of dealing with him as he has spent only limited time with his father for the past 6 months.  The lack of time with his father is also likely to [sic – be] a contributing factor to X’s lack of co-operation with his mother who has always been unable or unwilling to support X’s relationship with his father.

   5)   Your Honour would be able to comfortably find on the evidence on the balance of probability test that there are no unacceptable risk of harm to X if the Orders of 26^th September 2014 are re-instated.

   6)   The Respondent Father relies on the Judgment handed down in September 2014 and the analysis and s.60CC findings, s.61DA findings of shared parental responsibility, and s.60CA best interests of the child are the paramount consideration, none of which has materially altered as at today’s date.

   7)   It is submitted that Your Honour bearing in mind s.60B objects of the Act would favour the Respondent Father’s position over the mother’s which is contrary to the s.60B objects.

   8)   Moreover s.60CC(2) and (3) primary and additional considerations also favour the Respondent Father’s position.

   9)   The Respondent Father also relies on Section 65DAA of the Act and submits that this Section’s requirements can only be satisfied by the father’s proposal.

   10)    It is also submitted that it is in X’s best interests that finality be achieved to the extent that this is possible as continuing litigation poses the greatest danger to X’s future welfare.

   11)    The Respondent finds it surprising that the Applicant mother should oppose him resuming unsupervised care of X given that the unequivocal evidence of his treating psychiatrist Dr A is that there is no risk to the safety or wellbeing of X should the arrangements under the orders made in September 2014 be resumed.

   12)    Moreover given Mr Mott’s evidence on Affidavit it is apparent that should be [sic – he] in the future become concerned about his mental health be would immediately report this and he would make it clearly known to the mother.

Outline of Principle in relation to Stay Applications

1. For current purposes, I note the following (also noted by the Mother in her submissions) from the Full Court’s decision in Aldrige & Keaton (Stay Appeal).[6]  At [17] – [18], the Court said (emphasis added):

   [6] Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106. For a more recent discussion, but no formal ruling, by a differently constituted Full Court (Thackray, Ainslie-Wallace & Murphy JJ) of stay applications , where Aldridge & Keaton (Stay Appeal) was distinguished but the comments of Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681 were further considered, see Anderson v Senior (Stay Appeal) (2013) 279 FLR 399; (2014) 50 Fam LR 21 at [35], [36], [37] and [38]. See also the comments of the Full Court (Warnick, Boland & May JJ) in K & B (2006) FLC ¶93-288.

   [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.

Consideration & Disposition

1. I take as the point of reference here the Grounds of Appeal set out in the Mother’s Amended Notice of Appeal, which bears a date of 10^th February 2016.  For immediate purposes I make the following general observations in relation to the grounds of appeal.  They are all predicated upon the Court accepting that there is no formal challenge to the Mother’s bona fides in relation to the appeal.

2. First, all grounds (1-8, with Ground 2 containing sub-grounds (a) – (g), and Ground 3 containing two sub-grounds (a) and (b)) are prefaced by the binary but alternative assertions that error was established by (i) acting upon a wrong principle and or (ii) failing to properly exercise the Court’s discretion. 

3. Apart from specific reference to the incident involving the Father and the child on 28^th March 2015 and concerns about the Father’s mental health (the latter having been the subject of intense scrutiny at the final hearing in 2014), the details of which are set out in the judgment under appeal (dated 19^th November 2015), the Grounds then generally outline – emphasis upon “generally” – a failure to act upon proper principle, and or failure to exercise my discretion properly.

4. Among a number of difficulties, as they seem to me, is that there is no identification of what “wrong principle” has either been used or not used in the Court’s determination of the Mother’s May 2015 Application.  I have already observed the deficiency in the Mother’s submissions in making no reference at all to Rice & Asplund, the principles from that original case, or to any subsequent case in the same general jurisprudential territory.

5. Further, simply to make generic assertions, as the Mother’s submissions do, about the Court allegedly acting upon “a wrong principle” assists the Court in no significant or pertinent way.  No relevant principle is identified that was (or was not) applied.  In such circumstances, this further omission of reference to “principle” makes the Court’s task, as it is required to undertake, of assessing the relative strength of the Mother’s case, all but impossible.  Not for the first time in submissions filed by the Mother, there is no relevant jurisprudential reference point.  The Court cannot and will not simply proceed on the basis of trying to divine the point of principle referred to by the Mother, which is said to have been transgressed but which is not otherwise detailed.

6. Nor does the Mother refer to specific paragraphs of the judgment under appeal, thereby again making the Court’s task arduous in assessing the relative merit of the Mother’s complaints and the strength (or otherwise) of the prospects of success of the appeal.

7. And while true it is that the exercise of discretion is always a matter of individual assessment of the facts, circumstances and law as determined by the individual Judge, the Grounds as set out in the Amended Notice of Appeal seem more often than not to be more generalised complaints about the conclusion reached by the Court.  The specific grounds of appeal are based very much on assertion and a complaint regarding the weight given to certain matters by the Court rather than identifying specific paragraphs where the alleged errors are said to be manifest.

8. In this regard, I remind myself of the oft-cited statement of principle by Stephen J in Gronow v Gronow, where his Honour said (emphasis added):[7]

   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. In the present case it should not have done so at all.

   [7] Gronow v Gronow (1979) 144 CLR 513 at pp.519-520.

9. In the same case, Aickin J (with whom Mason and Wilson JJ agreed at p.526) said (at pp.537-538) (emphasis added):

   Statements of the general principles to be applied by an appellate court when asked to set aside an order made in the exercise of a judicial discretion generally include a reference to the trial judge giving inadequate weight to some factors and excessive weight to others. It is however a mistake to suppose that a conclusion that the trial judge has given inadequate or excessive weight to some factors is in itself a sufficient basis for an appellate court to substitute its own discretion for that of the trial judge. As Kitto J. said in Lovell v. Lovell (1950) 81 CLR, at p 533 :

   
   
   

   “The proposition that the appeal court will consider whether 'no sufficient weight' has been given to relevant considerations is not inconsistent with the principle that the appeal court does not deal with the appeal as if it were exercising the original jurisdiction; even if it considers that insufficient weight has been given to some relevant consideration, it will still not substitute its judgment for that of the primary judge unless it comes clearly to the conclusion for that reason that the discretion has been exercised wrongfully.”

   15. It is clear that that test will not be satisfied merely by reason that the appellate court, considering the matter de novo, would itself have arrived at a different result. The fact that a decision on custody depends upon the exercise of a judicial discretion recognizes that in many cases different minds may arrive at different conclusions.

   16. The advantage which a trial judge has of seeing and hearing the witnesses is of particular importance in matters of custody where so much depends on an evaluation of the characters and personalities of the parents, and their attitudes, not only to the child, but also to each other. The attribution of comparative weight or importance to various factors will generally be influenced by the impression formed on seeing and hearing each parent, and in appropriate cases the child or children involved. Some objective matters such, for example, as relative financial resources and adequacy of accommodation may stand in a different position but in the present case it is not suggested that any error occurred in that respect.

10. In keeping with these comments by the High Court, I simply record that the Court has the distinct benefit of having watched, listened to and observed these parties on many occasions over a not insignificant period of time – noting that the formal contest between the parties commenced in 2012.  While not decisive or determinative in itself, the Court has had the singular benefit of close observation and contact with these parties, as I have mentioned, over a not insubstantial period.  In addition to all the evidence at trial, including written and oral evidence from a very experienced family consultant whose evidence I accepted, the Court’s long association with the parties cannot but inform, to some relevant degree, (a) the proper assessment of the evidence presented by both parties and (b) the relative weight given to it in the exercise of the Court’s discretion in determining what Orders were and are in X’s best interests.

11. In the light of the grounds set out in the Amended Notice of Appeal, I note the following.

12. The Mother’s various contentions levelled at the Father’s conduct and his (in her view) inappropriate if not egregious parenting of X are set out in [35] – [54] of the judgment under appeal.  Those paragraphs refer to the detail in the Mother’s three affidavits (and a further affidavit from the maternal Grandmother).  The paragraphs noted refer in particular to the Mother’s concerns regarding the Father allegedly not providing a safe environment for the child, notably and understandably by particular reference to the “punching incident” at a Woolworths supermarket involving the child and the Father on 28^th March 2015, and the following contentions:

    (a)The Father allegedly being able to convince his treating psychiatrist that he is well, when the Mother says that he was not;

    (b)The child’s ongoing difficult behaviour;

    (c)The child allegedly not coping at school;

    (d)A contest between the Father and his partner outside X’s school; and

    (e)Reports by X to his Mother about alleged ill-or inappropriate discipline in the Father’s home in relation to his step-children.

13. These and related matters, from the Father’s perspective, are then set out and considered at [56] – [74] of the judgment under appeal.  The brief submissions of the parties are then set out in the November 2015 judgment, followed by the Court’s consideration and disposition, at [77] – [93].  Respectfully, short of holding another trial to reconsider the same parenting issues that were addressed at the final hearing in the light of events that took place between September 2014 and May 2015, in my view, it is difficult to see how else the Court can assist these always-warring, and in many ways, parentally dysfunctional parties.  I say “dysfunctional” primarily having regard to all the comments and observations set out in the primary judgment.  Not for the first time, I note that the Mother did not appeal the Orders made or otherwise challenge the detailed analysis of the difficult features of the parental relationship and the equally careful consideration of the diverse traits of the individuals involved in the final judgment delivered in September 2014.

14. In my view, in accordance with recent High Court authority, the Court also needs to have some regard to the hundreds of other matters clamouring for its scarce public resources.[8]  For example, in Expense Reduction v Armstrong, the High Court said (at [56] and [57]):

    [56] … Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose.

    [57] That purpose may require a more robust and proactive approach on the part of the courts. Unduly technical and costly disputes about non-essential issues are clearly to be avoided. However, the powers of the court are not at large and are not to be exercised according to a judge's individualistic idea of what is fair in a given circumstance...

    [8] See, for example, comments in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303 and the earlier decision in AON v ANU to which I have referred earlier in these reasons.

15. What happens in one matter necessarily has flow-on effects for other matters, as the High Court has noted in other matters.  While not strictly a factor in the Court’s determination to dismiss the Mother’s May 2015 Application, nonetheless it may be a consideration if these parties continue their inveterate, untrammelled litigious mis-adventures.  Of course, the Court does not take into account either that, ultimately, in matters of this kind that involve constant litigation, not only does the child suffer in every respect but only the lawyers “win.”

16. It is as well, in my view, simply to refer to the Court’s consideration of the issues from the November 2015 judgment, particularly at [77] – [93].  In my view, these paragraphs provide the most appropriate answer or detailed response to the Mother’s contentions that either or all of the following infected the exercise of the Court’s discretion, namely (a) failing to make Orders that were/are in the child’s best interests, (b) failing to consider (or properly to do so) matters of family violence and the consequences of it, (c) failing to take into account (or properly do so) the Father’s mental health, (d) failing to consider (or to do so properly) the relevant principles from Rice & Asplund, and (e) failing to permit the Mother to re-agitate which school X should attend.

17. It is, as always, highly desirable that there be as few as possible changes in parenting arrangements.  This is especially so in relation to these parties.  This consideration is also relevant to the Court’s consideration of whether, if a stay is not granted, the appeal will be rendered nugatory.  In my view, the appeal would not be rendered nugatory if a stay is not granted; the child will be spending time with both parents, even if a stay was granted.  The only issue really is (or would be) in relation to the amount of time the child would spend with the Father.

18. It has been said too often already in these relentless proceedings that it is in X’s best interests for his parents to stop fighting.  It may simply be that their utterly different and antagonistic personalities (as between themselves) and their completely different parenting styles (the Father quite “devil may care” and the Mother almost smotheringly protective) render them incapable of making such a decision and letting the dust of litigation dissipate.  I readily accept of course that there is no “quick fix” in this matter. 

19. No amount of exhortation, no amount of expert evidence, not even the financial cost of the litigation, seems capable of bringing any degree of sense to the parties to cease the litigious and ongoing parenting contest.  It would seem that until the highly anxious and extremely protective Mother obtains exactly what she is seeking (sole parental responsibility, to limit the Father’s time with X, a change of school for X and that she can be perfectly satisfied that the Father’s mental health issues never pose a problem for anyone, especially X – essentially what she sought and did not procure at the final hearing in 2014), for her part at least, the litigation will continue.  And even if this was to occur, in my view, it would risk (a) alienating X from one or both parents and (b) the Father would, of necessity, take what he would see as remedial litigation to secure his [heavily reduced] time with X.  Such is the vicious cycle that has been created and seems incapable of being broken – even for X’s sake.

1. Indeed, having regard to the Court’s analysis of each of the parents at the final hearing in 2014, and in the light of subsequent events, it is an almost inescapable conclusion that the Mother will seek to take advantage of any and every opportunity to take control of the parenting situation; she sees that by reducing the Father’s time with X she is protecting the child.  It is nonetheless, in the light of the history between the parties and the Court’s formal assessment at the final hearing, a form of or means by which the Mother can take control of the parenting relationship – which she sees as necessary for X to be properly and adequately protected from the Father’s brash and irresponsible behaviour.

2. Not for the first time, however forlornly, I suggest the parties need to focus on developing some basic level of parental trust (noting that neither parent seems willing to take the first step in this regard, such is the entrenched nature of their dysfunction) if for no other reason than practicality because they still have quite a few years of attempting to co-parent X ahead of them.  X needs both of his parents in his life.  As I did with the September 2014 judgment, I draw attention again to the unchallenged and quite strong evidence of the family consultant which was to the effect that X has a great relationship with his Father and that he revels in the freedom and excitement of it, especially in their outdoor adventures.  I note here, as I did at trial, that this spirit of adventure is another cause of angst to the Mother.  The Orders made by the Court on 15^th November 2015 simply attempted to provide an extra level of protection in relation to the Father’s mental health monitoring and still to ensure that X is able to maintain a positive relationship with both of his parents.

3. I should also highlight that, even on the Mother’s proposed Orders sought, she does not seek to stop X spending overnight time with the Father.  Somewhat rhetorically, the Court may ask or inquire that if the Mother was so concerned about the Father and his mental health (or anything else) in relation to the care of X, one might have reasonably expected that this would have developed into a “no contact” case.  That is not what has happened.

4. In my view, both at the conclusion of the trial and since, the Court has taken appropriate steps to address any issues of “risk” to the child that may arise out of the Father’s bi-polar condition and his treatment regime.  Again I note that such matters are not new.  They were addressed at length at the trial.  Likewise, the Court is well aware of the completely divergent personalities and parenting styles of both parents – their respective tendencies, proclivities, foibles and all such manner of things.  These too were addressed at the trial at length.  And further, also addressed at the trial were the physical contests that had occurred between the parties and which involved the child on one particular occasion.  As noted previously, there was no appeal from the trial judgment.

5. In my view, short of a “no contact” Order against the Father (which is not sought), or such case being run by the Mother, the best protective measures available to the Court have been put in place in relation to the Father’s bi-polar condition.  As noted at trial, this condition does not prevent him from being employed in a (occupation omitted) position in a (employer omitted) in Canberra.  As also noted at trial, there was no challenge to the family consultant’s clear evidence that X wanted to spend significant time with his Father and that he enjoyed doing so.  The Court may assume (absent independent evidence to the contrary) that as X grows, the range of interests and activities (even boisterous ones) that he wishes to undertake with his Father is likely to grow also.  This will almost certainly lead to greater or at least on-going anxiety for the Mother as she frets about X being exposed to what she perceives to be “dangerous activities.” 

6. I note again that the Mother still proposes that X spend overnight time with his Father.  If she had real concerns about the Father’s parenting, the Court might reasonably expect that the Mother would not be proposing Orders for overnight time between the Father and X to continue, albeit on an abridged basis because the risk of harm to the child would be too great.

7. Again to state the obvious: the divergent approaches to parenting by these parents, necessarily leads to anxiety and such things.  “Anxiety and such things”, without more, is insufficient to require the Court to re-visit the entirety of parenting Orders that were the subject of a final hearing not all that long ago.  Among other things, to do so is not in X’s best interests.  Nor is it in the best interests of the parents.  Indeed, it is the completely opposite – for parents and child.

8. If the Court’s assessment of the Mother’s case is awry in any relevant way, such as in the exercise of its discretion and or that the course undertaken was not open to it on the limited evidence available, and/or that the Court has so obviously stepped over some appealable line, it will be determined by the Full Court in due course.  Respectfully, such matters are for the Full Court.  In my view, the Mother’s Application and her submissions in particular, are insufficient to warrant the Court to stay the Orders made on 19^th November 2015.  Among other things, (a) they are not in X’s best interests, (b) the ongoing litigation between the parties must cease at some time if they have any genuine regard for X’s best interests and changing the time between the Father and son would not aid anything except to feed the Mother’s need to control the parenting relationship, and (c) it is more likely than not that the parental dysfunctioning is at least adding to X’s distress, which the Mother interprets as being a sign that X needs to change schools.

9. The following general observations may be made in conclusion.

10. First, seeking a stay of the Orders made on 15^th November 2015 is, in effect, to seek a stay of the final Orders made in September 2014 – which were not appealed.  This is so because to stay the November 2015 Orders is to continue the Consent Orders of 15^th August, which (by Order 9) suspended all previous Orders.

11. The flow-on effect of such a stay is ultimately a very significant step backwards in relation to X’s best interests.  There is no challenge to X’s love for and desire for time with his Father.  As outlined in the course of the final hearing and considered in detail in the September 2014 final judgment, the Father’s mental health issues are real and on-going; their relevance to the Father’s capacity to parent X appropriately was considered by the family consultant and the Court.  Final Orders were made having regard to such matters.

12. In the Court’s view in September 2014, and since, appropriate checks have been put in place.  X needs stability and consistency in his life (as do the parents); constantly changing the parenting Orders in the significant ways proposed by the Mother undercuts these important considerations.

13. Secondly, the Father’s consent to Orders in August 2015, while he sought and provided relevant medical evidence to the Mother and to the Court, showed, in my view, insight and responsibility.  Mental illness should not be used as a weapon in family law proceedings.  It is a relevant and important consideration; proper evidence is always necessary.  This has been provided by the Father; there are Orders in place to require the Father to continue to provide it.

14. Thirdly, absent a “no contact case” (which this is not) and an equal time case (which this also is not) the Court is required (a) to ensure that the child spends significant and substantial time with the non-resident parent (subject to “best interests” considerations as set out in Part VII of the Act), and (b) to put in place measures to protect [primarily] the child but also both parents.  Such regulation requires a delicate balance – which the Court considered and addressed in the detailed reasons in support of making the final Orders of September 2014.  The evidence before the Court in 2014 was detailed and substantial in relation to the Father’s mental health.  There are Orders in place for on-going reporting by the Father in relation to this aspect of his parenting capacity.

15. For these reasons, and in particular having regard to the principles outlined by the Full Court in Aldridge & Keaton (Stay Appeal), the Mother’s Application for a Stay, filed 8^th December 2015, must be refused, with costs.  The Court so orders.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Neville

Date:  11^th August 2016