EJK & TSL (No.2) - [2006] FamCA 806

FAMILY COURT OF AUSTRALIA

EJK AND TSL

[2006] FamCA 806

APPEAL – STAY - Refusal by trial Judge to grant stay of orders pending appeal – Consideration of principles outlined in Clemett and Clemett (1981) FLC 91-013 – Trial Judge’s discretion miscarried as her Honour did not give sufficient weight to lack of enforceability in Australia of undertakings given by father – Could not be said mother’s appeal had no prospects of success – Stay granted on basis that appeal be determined expeditiously.

Federal Proceedings (Costs) Act 1981 (Cth), ss 6 and 9

Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460
Clemett and Clemett (1981) FLC 91-013
DP v Commonwealth Central Authority; JLM v Director-General, New South Wales Department of Community Services (2001) 206 CLR 401; (2001) FLC 93-081
JRN & KEN v IEG & BLG (1998) 72 ALJR 1329
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418

APPELLANT: EJK

RESPONDENT: TSL

FILE NUMBER: MLF 3708 of 2004

APPEAL NUMBER: SA 49 of 2006

DATE DELIVERED: 21 August 2006

PLACE DELIVERED: Sydney (with video link with Brisbane and Melbourne)

JUDGMENT OF: Coleman, May and Boland JJ

HEARING DATE: 17 August 2006

LOWER COURT JURISDICTION:                  Family Court of Australia
LOWER COURT JUDGMENT DATE:            16 August 2006
COUNSEL FOR THE APPELLANT:               Mr Wilson
SOLICITORS FOR THE APPELLANT:         Westminster Lawyers
COUNSEL FOR THE RESPONDENT:           Mr Geddes, QC

SOLICITORS FOR THE RESPONDENT: TressCox Lawyers

Orders

That the appeal, insofar as it relates to the refusal to stay orders made on 16 August 2006 pending an appeal, is allowed.
That the balance of appeal No. SA 49 of 2006 is expedited.
That the stay of the orders of 16 August 2006 made by the Full Court on 17 August 2006 shall continue pending the hearing and determination of the appeal or further order of the Court.
That a procedural hearing shall be conducted as soon as practicable by the Appeals Registrar, Southern Region to settle the appeal book index and make such other procedural orders as are necessary for the prosecution of the appeal in the sittings in the week commencing 18 September 2006.
Reserve costs to the Full Court as costs in the appeal, including the reservation of the application by either party for a certificate pursuant to the provisions of ss 6 and 9 of the Federal Proceedings (Costs) Act 1981 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

APPEAL NUMBER: SA 49 of 2006

FILE NUMBER: MLF 3708 of 2004

EJK

Appellant

And

TSL

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

These proceedings concern a five and a half year old child JWL. He was born in Korea, and his parents EJK (‘the mother’) and TSL (‘the father’) are also Korean citizens.
It is not in dispute that in 2004 the mother, whilst exercising contact to the child, removed him from Korea without the father’s knowledge or consent. By June 2004 the mother and the child had commenced living in Australia in the home of her sister. Not long after the mother commenced parenting proceedings in this Court, and in January 2005 she obtained ex parte interim orders which provided that the child should live with her.
The father, on becoming aware of the child’s whereabouts, also filed applications in the Court which came before Dessau J in November 2005. Her Honour determined, on a summary basis, that the child should be returned to Korea for the Korean courts to determine issues relative to his residence, and stayed the mother’s parenting application. The mother’s appeal against the orders was unsuccessful.
On 16 August 2006 the parties brought essentially two applications before the trial Judge for determination. The first matter arose because the Full Court made orders on 9 August 2006 remitting the matter back before her Honour for the making of further orders, as her Honour’s earlier orders for the return of the child to Korea were outdated.
The second application before her Honour was an application to abridge time in respect of new or further applications filed by the mother on 15 August 2006 for interim and final orders that the child live with her, and spend time with and communicate with the father.
After short submissions the trial Judge stood the matter down until later in the day when she dismissed the mother’s application for abridgement of time of her parenting applications, and made orders for the return of the child to Korea.
Later that afternoon, the mother’s counsel made an oral application for a stay of the trial Judge’s orders pronounced earlier that day, on the undertaking that the mother would file a Notice of Appeal against the orders. Her Honour refused the application for the stay.
Because of the child’s imminent departure for Korea, the Court was asked to convene an urgent Full Court to hear the mother’s appeal against the trial Judge’s refusal to stay her orders pending an appeal. We heard the mother’s application by video link, reserved our judgment until today, and stayed a number of orders made by the trial Judge pending our determination of this appeal or further order of the Court. Because of the urgency of the appeal, we did not have appeal books, transcript of the proceedings before the trial Judge, or her Honour’s settled reasons for judgment.

NOTICE OF APPEAL

The mother’s Notice of Appeal filed 17 August 2006 is an appeal against both the trial Judge’s refusal to stay her orders pending an appeal, and an appeal against her refusal to abridge time to enable consideration of the mother’s application for parenting orders. We are only dealing with what for convenience we will describe as the stay appeal.
The mother relies on the following grounds in support of her stay appeal:
‘1.     The learned trial Judge’s decision was wrong in law and contrary to established authority.
2.      The learned trial Judge acted upon wrong principles, and in particular she erred in:
(a) accepting undertakings from the husband that are unenforceable once the husband has left the jurisdiction of the court;
(b) failing to regard the child’s present stability in remaining in his current satisfactory circumstances pending the hearing of the appeal as determinative of what his best interests required in the short term; and
(c) assessing that the balance of hardship required that the child should be taken to Korea immediately rather than waiting for the appeal to be determined.
3.      The learned trial Judge made errors of fact, and in particular it was not open to her in the circumstances of this case to find or conclude:
(a) that the husband’s undertakings satisfactorily met the wife’s claims that:
(i) she was unable to return to Korea to participate in proceedings there concerning the child; and
(ii) if her residence applications were not considered before the child was taken from the jurisdiction of the court a successful outcome of those applications would be rendered nugatory;
- as those undertakings are unenforceable once the husband has left the jurisdiction of the court;
(b) that the wife’s application or appeal was a mere delaying tactic – as none of the evidence was tested and the application was and is ostensibly bona fide;
(c) that the wife’s appeal would not be heard for some months – as the wife offered to give an undertaking to bring an application for the hearing of the appeal to be expedited and the outcome of that application cannot be predicted; and/or
(d) that the wife’s appeal was not based on substantial grounds – as the basis for the wife’s appeal is that Her Honour had effectively declined to consider the child’s best interests by failing to deal with the wife’s applications for residence whilst the child was still in the jurisdiction of the Court.
4.      Alternatively the learned trial Judge failed to give sufficient reasons, and in particular she failed to give any proper or sufficient reasons for finding or concluding:
(a) that the husband’s undertakings satisfactorily met the wife’s claims;
(b) that the wife’s appeal was a mere delaying tactic;
(c) that the wife’s appeal could not be heard for some months; and/or
(d) that the wife’s appeal was not based on substantial grounds.’

THE PARTIES’ SUBMISSIONS

Because of the urgent nature of the appeal the Court did not have the usual outline of argument from counsel, but rather counsel succinctly, but comprehensively, presented their arguments to us orally. Each party’s counsel, to their credit, made appropriate concessions and were of much assistance to the Court.
It is useful that we record that both counsel agreed the principles applicable to the determination of whether or not a stay should be granted in this case are as set out in Clemett and Clemett (1981) FLC 91-013.
On behalf of the mother her counsel submitted:
·    the trial Judge failed to address the present satisfactory circumstances in which the child is living;
·    the trial Judge failed to take into account the mother undertook to prosecute the appeal expeditiously;
·    the mother’s appeal was not a delaying tactic but a bona fide application;
·    the parenting application had not been heard on its merits; and
·    the appeal was based on substantial grounds including:
-    an asserted failure by the trial Judge to consider the child’s present circumstances
-    an asserted failure by the trial Judge to have regard to the fact the child had been in the care of his mother in Australia for 26 months
-    that the trial Judge had placed improper reliance on undertakings given by the father, such undertakings not being enforceable in Australia
-    a failure by the trial Judge to address the fact the mother would not return to Korea, and the consequences for the child of separation from her.
Senior counsel for the father submitted that the trial Judge had considered carefully the question of abridgement of time, and found that the mother was not precluded from prosecuting her parenting proceedings. Those proceedings would not be rendered nugatory by the return of the child to Korea because of the undertaking given by the father that he would return the child to Australia if required to do so.
The father’s counsel also submitted:
·the enforceability of the undertakings offered were not the subject of challenge before the trial Judge, and if there had been such a challenge the father had been prepared to offer security;
·the mother’s new application for parenting orders was a delaying tactic; and
·the grounds of appeal demonstrated no reasonable prospects of success.

RELEVANT LAW

It facilitates our discussion to set out the principles espoused in Clemett and Clemett (supra) to which we have already referred. At 76,175 Nygh J said:
‘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. In this case we are satisfied that the appellant is appealing seriously on the merits of the case, that an appeal can be (and has in fact been) expedited within a reasonable time and that the child is properly looked after by the father. There is no indication that his Honour gave any consideration to those matters. If his Honour did, we are of the view he did not give sufficient consideration to them. For those reasons, we are of the view that his Honour exercised his discretion wrongly and consequently that the appeal should be upheld.’
Although we note that this decision pre-dates the Family Law Reform Act 1995 (Cth) when the whole of Part VII of the Family Law Act1975 (Cth) (‘the Act’) was subject to ‘the best interests test’, we accept the principles espoused are relevant to this application, and the child’s best interests, even if not the paramount consideration, on the facts of this case are a significant consideration. The importance of the consequences for a child of granting or refusing a stay are well recognised. In JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332 Kirby J said:
‘In my opinion, some adaptation of the rules stated in the cases governing stays in this Court must also occur in cases which affect significantly third parties who are not parties before the Court and, in particular, children whose welfare must always be in the mind of a court in making an order affecting their interests.’

DISCUSSION

Before us, counsel for the mother first argued that the trial Judge had either wrongly formed the view that the mother’s application for expedition of the appeal would not be successful, or that in the exercise of her discretion, her Honour failed to give sufficient weight to the fact that the mother undertook to prosecute her appeal expeditiously.
We accept that in the circumstances of this case the timing of when the appeal could be heard was a relevant consideration for her Honour to take into account. It appears there was no evidence before her Honour as to when the appeal could be heard. Whilst we accept the mother is prepared to seek expedition of the appeal, we discern, having regard to the manner in which the case was conducted before the trial Judge, there was no appealable error by her Honour in her consideration of likely delay.
It is submitted on behalf of the father, and disputed by the mother’s counsel, that the parenting application is not a bona fide application, but merely a delaying tactic. There is no dispute that the child has been in Australia in the care of the mother for the last 26 months. Unfortunate delays caused by the litigation, and not the fault of the parties, have been the genesis of the child’s living arrangements. The child’s present arrangements are a matter which warranted significant consideration by the trial Judge.
The mother has now provided sworn evidence to the Court that she will not return to Korea. We note that the proceedings before the trial Judge in November 2005 were conducted, albeit with the consent of the parties at that time, on a summary basis. That was a course (as found by the Full Court dealing with the appeal against the orders originally made by the trial Judge) deemed appropriate to determination of proceedings when there is a forum dispute requiring a speedy resolution of issues. We note, however, in this case, there has not been a hearing of the mother’s application on the merits.
There are two issues arising out of the mother’s stated position that she will not return to Korea. The first issue concerns the undertaking given by the husband that he would ‘forthwith do all things that he is able to do to release the applicant wife … from prosecution in Korea in respect to her removal from Korea of the child…’. We will return to this undertaking when we discuss issues relative to the undertakings given to the trial Judge.
The second issue which requires examination is whether the trial Judge, in the exercise of her discretion in refusing the stay, placed insufficient weight on the effect on the child of the sudden separation from his mother who has been his undisputed primary caregiver for the last 26 months. This issue is inextricably linked with the bona fides of the mother’s application and appeal.
In dealing with the effect of refusal of a stay, the trial Judge noted the mother’s counsel submitted a refusal to grant a stay would render the mother’s appeal, if successful, nugatory. The trial Judge noted an undertaking given by the father which was in the following terms ‘[t]o do all things required to return and to return the child … to Australia if required to do so by the Family Court of Australia’. It appears from her Honour’s brief reasons that she impliedly rejected the mother’s argument her appeal would be rendered nugatory if the stay was not granted.
Although her Honour referred to the child’s best interests being served by his return to Korea after orders made in ‘very lengthy litigation’, the evidence before the trial Judge supported a finding the child was in a stable environment which had existed for 26 months. Unfortunately, because of the appeal process there have been significant delays since the trial Judge determined matters relevant to the child’s best interests in a summary hearing. We discern that the trial Judge placed little or no weight on this significant factor.
At the original hearing before the trial Judge there was a degree of uncertainty about the mother’s position in respect of her return to Korea. By the time the trial Judge made orders for the child to return to Korea it was on the basis that the mother would return to Korea, and the trial Judge found it was in the child’s best interests that the mother should accompany him on the aircraft.
The trial Judge noted in her stay judgment the fact that the mother said she could not return to Korea was an argument which had been central to her previous decision.
This finding leads us to consider the effect of the undertakings. Counsel for the mother very properly conceded although the matter had been dealt with before the trial Judge in an abridged manner, that he had not specifically argued the question of lack of enforceability of the undertakings given by the father before her Honour. Counsel for the father argued that consistent with authority (Suttor v Gundowda Pty Ltd (1950) 81 CLR 418) the mother should now be precluded from raising this argument.
It is clear from her Honour’s reasons in her first judgment delivered on 16 August 2006 when, amongst other matters, she examined the father’s failure to take steps to bring criminal proceedings against the mother to an end, that there were ‘arguable issues with future enforcement of an undertaking in this court’.
In DP v Commonwealth Central Authority; JLM v Director-General, New South Wales Department of Community Services (2001) 206 CLR 401; (2001) FLC 93-081 Gaudron, Gummow and Hayne JJ in the course of determining an appeal in a case under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) considered the efficacy of undertakings offered by the father to the Court in Australia that he would do things in Greece in accordance with an undertaking. Their Honours said at 421:
‘There was a further undertaking that the father would make a declaration pursuant to Greek law, which would be enforceable by that law, in the same terms as his undertakings to the Family Court. For our part we gravely doubt the efficacy of an undertaking in this form. If the undertakings to be given by the father about his future conduct in Greece were to be enforceable, it would seem to have been necessary to suspend the order for return until production of evidence to the Family Court of the giving of undertakings by the father which would be enforceable in Greece at the suit of the mother.’ (original emphasis).
There was no evidence before the trial Judge about the enforceability of any undertaking once the husband returned with the child to Korea, nor was there any proposal by the father to give like undertakings to the Korean Court.
Counsel for the mother conceded before us that a letter, although marked as an Exhibit, from the mother’s expert on Korean law was not admitted as evidence before the trial Judge, but had initially been ‘marked for identification’. Although the trial Judge in her ex tempore reasons referred to that letter, in circumstances where, absent transcript, we cannot be sure it was before her Honour, and particularly given the frank concession made by the mother’s counsel, we do not propose to consider the contents of that letter.

CONCLUSIONS

The trial Judge’s reasoning is clear. Her Honour principally found that the mother’s appeal, and if successful, her application for parenting orders, would not be rendered nugatory because the undertakings given by the father would ensure the return of the child to Australia if so ordered.

We accept the trial Judge in this urgent application did not have the benefit of considered argument on the enforceability and effect of the undertakings, nor it appears was she referred to DP v Commonwealth Central Authority (supra). However, it is clear from her reasons that her Honour was alive to the difficulty with the undertakings. We are satisfied that her Honour’s discretion miscarried in that she did not give sufficient weight to the lack of enforceability of the undertakings in Australia.
We have formed the view the trial Judge was in error in the exercise of her discretion in failing to grant a stay pending appeal, and in particular in placing the reliance she did on the undertakings. Although we have not undertaken any detailed examination of the mother’s grounds of appeal, we are satisfied it could not be said, particularly having regard to ground 6 of the Notice of Appeal, that the appeal has no prospects of success (see Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460 at 463).
We are conscious that the parties have been involved in litigation since mid 2005, that the father has travelled from Korea, but most importantly the child’s best interests dictate there should be an expeditious determination of issues which impinge on his welfare.
We have formed the view that any stay should be granted on the basis that the appeal be determined expeditiously.

I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate:

Date: 21 August 2006