FAURE & SIMONS
[2011] FamCAFC 106
•10 May 2011
FAMILY COURT OF AUSTRALIA
| FAURE & SIMONS | [2011] FamCAFC 106 |
| FAMILY LAW - APPEAL – Appeal against the trial Judge’s refusal to grant a stay of the substantive orders pending the father’s appeal against those orders – Where further evidence that substantive appeal will be heard in one week’s time – Appeal allowed. FAMILY LAW - APPEAL – Re-exercise of discretion – Trial judge’s discretion re-exercised, in view of further evidence – Stay granted to expire at the conclusion of the hearing of the substantive appeal. |
| Family Law Act 1975 (Cth) s 93A |
| CDJ & VAJ (1998) 197 CLR 172 Clemett & Clemett (1981) FLC 91-013 House v The King (1936) 55 CLR 499 |
| APPELLANT: | Mr Faure |
| RESPONDENT: | Ms Simons |
| INDEPENDENT CHILDREN’S LAWYER: | Rafton Family Lawyers |
| FILE NUMBER: | PAC | 5887 | of | 2010 |
| APPEAL NUMBER: | EA | 53 | of | 2011 |
| DATE DELIVERED: | 10 May 2011 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Coleman, May and Murphy JJ |
| HEARING DATE: | 10 May 2011 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 April 2011 |
| LOWER COURT MNC: | [2011] FamCA 313 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Givney |
| SOLICITOR FOR THE APPELLANT: | David H Cohen & Co |
| COUNSEL FOR THE RESPONDENT: | Mr Geary |
| SOLICITOR FOR THE RESPONDENT: | Salvos Legal Humanitarian Law |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Youssef |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Rafton Family Lawyers |
Orders
That the appeal against Justice Johnston’s refusal of a stay on 29 April 2011 is allowed.
That orders 3, 4, 5, 13, 14 and 15 of the parenting orders made by Justice Johnston on 29 April 2011 be stayed until the conclusion of the hearing of the father’s appeal against such parenting orders on Tuesday 17 May 2011 or the further order of the Full Court on that day.
That to the extent necessary, the hearing of the father’s appeal against the parenting orders made by Justice Johnston on 29 April 2011 be expedited and such appeal be fixed for hearing before the Full Court sitting in Sydney on Tuesday 17 May 2011 at 10 am.
That the father who is present in court and has been represented by Counsel, facilitate contact between the child and her maternal grandmother Mrs Simons from 4.30pm Friday to 4.30 pm Sunday with changeover at C Railway Station, and also facilitate telephone contact between the child and the mother.
That the appeal books for the husband’s appeals comprise each of the following documents arranged in the following order:
· The Notice of Appeal or Amended Notice of Appeal;
· Orders of the trial Judge for both the substantive proceedings and the refusal to grant a stay;
· Reasons for judgment of the trial Judge for both the substantive proceedings and the refusal to grant a stay;
· Application and response, case outline documents, family reports, and any relevant affidavit material;
· Exhibits tendered before the trial Judge; and
· Summary of Argument.
That the appellant husband file four (4) copies of the appeal books in accordance with the previous order in the Sydney Registry of the Court by no later than 2 pm on 13 May 2011, together with a certificate pursuant to Chapter 22 Rule 22.22(2) of the Family Law Rules, and serve one copy of the appeal books on the solicitors for the respondent and one copy on the ICL, together with a copy of the certificate.
That the appellant father and the ICL file and serve submissions by 2 pm on Friday 13 May 2011.
That the respondent mother file and serve her submissions by 2 pm on Monday 16 May 2011.
That the Court will provide a transcript of proceedings 19, 20 & 21 April 2011 and 29 April 2011 before the trial judge.
That the costs of and incidental to these proceedings be reserved to the Full Court hearing the father’s appeal against the parenting orders of 29 April 2011.
That to the extent that these orders do not comply with any provision in the Family Law Rules, then such compliance be dispensed with.
That each party have liberty to apply for any further directions by telephone to the Honourable Justice Coleman (or if not reasonably available to another member of the Appeal Division) upon 4 hours notice in writing to the other party and to the Appeals Registrar in the Sydney Registry.
That the parties be granted photocopy access to the exhibits tendered at the trial.
IT IS NOTED that publication of this judgment under the pseudonym Faure & Simons is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
Appeal Number: EA 53 of 2011
File Number: PAC 5887 of 2010
| MR FAURE |
Appellant
And
| MS SIMONS |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Coleman J:
On 29 April 2011, after a hearing before him on 19, 20 and 21 April 2011, Johnston J made orders in parenting proceedings between Ms Simons (“the mother”) and Mr Faure (“the father”). The effect of the trial Judge’s orders was that the one child of the parties (“the child”), who was born in 2005, and is thus five and a half years of age, live with her mother, and that the mother be permitted to have the child live with her in the United States of America.
His Honour’s orders set out in detail the times which, in the absence of agreement, the child would spend with her father, either in the US where the mother would be living, Australia where the father was likely to be living, France, or the Caribbean, from whence the father came, and where his family was resident. His Honour’s orders set out in some detail (see order 5) the basis upon which the child would spend time with her father in the foreseeable and more distant future. They also provided for the cost of air travel which would be necessary to facilitate the child spending time with her father.
On the day the trial Judge delivered his judgment in the substantive proceedings, the father, who had sought that the child primarily reside with him and do so within the Commonwealth of Australia, applied to his Honour for a stay of the orders which had just been made and, in particular, the order which permitted the mother to remove the child from the jurisdiction of the Commonwealth. For reasons which he gave, and which give rise to the present appeal, his Honour refused the father’s application for a stay.
On 6 May 2011 the father filed a Notice of Appeal against the substantive orders made by the trial Judge on 29 April 2011. He also appealed against his Honour’s refusal of a stay. It having become apparent, I think yesterday, that, in the absence of any order preventing her from doing so, the mother proposed to have the child leave the jurisdiction tomorrow, a special sitting of the Full Court was convened for 12 noon today, at which the father’s appeal against the refusal of a stay has been heard.
The Independent Child’s Lawyer (“the ICL”), who had supported the father’s stay application before the trial Judge, supported his appeal to this Court.
Background
Some brief background to the present appeal is hopefully instructive. That background is obtained from the reasons for judgment of the trial Judge in the substantive proceedings. So far as the Court is aware, and as far as possible, the background for present purposes which will shortly be recounted is uncontroversial. The reasons why that is so would be apparent to the parties’ legal representatives but, to make it clear to the parties, this Court is not hearing the father’s appeal against the trial Judge’s orders in the substantive proceedings. It is not in a position to, it is not its function to, and it strives, so far as possible, to avoid, in determining this appeal, doing or saying anything which might give rise to a reasonable apprehension of an absence of impartiality with respect to the merits of the father’s appeal.
As noted earlier, the child the subject of the parenting proceedings is five and a half years of age. The mother is her biological mother. The father is her biological father. The mother is a citizen of the United States of America, having been born in the United States in 1977. The father is a French citizen, having been born in the Caribbean in 1979. The child has US and French citizenship.
At the time of the child’s birth in France, and for a period thereafter, the parties appear to have been predominantly resident in France. In about April 2006 the parties and the child visited the father’s parents and sisters in the Caribbean for approximately four weeks. In June of 2006 the mother’s parents and her elder sister visited the parties in France. In January 2007 the parties travelled to Australia with the child on a visitor’s visa. In August 2008 the parties applied for permanent residency in Australia.
Not long after that time, each of the parties secured employment. In May 2009 the mother’s employment contract expired and was not renewed. The father, at about that time, negotiated a new three-year contract with his then employer.
In about May 2009 the mother assumed the care of the child on a full-time basis, she not then being in employment, the father being in employment.
In about June 2009 the mother and the child visited the United States for six weeks. Thereafter they were in France with the father for about four weeks. They then returned to Australia in what was probably about September 2009.
The parties finally separated, their relationship having for some time prior thereto been problematic, in February 2010. At that time, the mother and the child went to the United States. The parties disagree about the basis upon which that occurred.
In August 2010 the father and Ms H, with whom the father had, by that time, re-partnered, took the child on a trip to the Caribbean. The child was returned to the care of the mother in the United States on 2 September 2010.
On 8 October 2010 the father made an application for the return of the child pursuant to the United States legislative embodiment of the provisions of what is generally referred to as the Hague Convention.
On 20 October 2010 the mother commenced parenting proceedings in the Superior Court of the State of Alaska.
In December 2010 a child of the union of the father and Ms H was born (“the child M”).
On 22 December 2010 the mother agreed that her pending proceedings in the Superior Court of the State of Alaska be stayed pending her return to Australia to finalise these proceedings. Pursuant to the agreement, the mother arrived in Australia on 6 January 2011. The child accompanied her to Australia.
In January 2011 the mother married Mr D in the United States. The mother and Mr D are expecting a child in May 2011.
The mother was in Australia earlier this year for the purpose of the proceedings before the trial Judge. She is now back in the United States, the Court has been advised, and there is no reason not to accept that she will be unable to travel to Australia in the immediate future, given the impending birth of the child of her union with Mr D.
The father’s appeal against the trial Judge’s refusal to grant a stay
Against that brief but hopefully sufficient factual background, the Court comes to consider the present appeal. The law which governs this appeal is not in doubt and does not need to be restated. In House v The King (1936) 55 CLR 499, a decision of the High Court of Australia, in the passage which appears at page 505, the High Court set out the possible bases for appellate intervention with respect to discretionary judgments. It is unnecessary, for a number of reasons, to read onto the record the judgment of Dixon, Evatt and McTiernan JJ in that case.
Of particular relevance for present purposes, for reasons which will become apparent, is the decision of the High Court of Australia in CDJ & VAJ (1998) 197 CLR 172. This case shed helpful light on s 93A of the Family Law Act 1975 (“the Act”) which is concerned with the admission of further evidence on appeal to the Full Court of this Court. In the course of the majority judgment, at paragraph 109, McHugh, Gummow and Callinan JJ, in discussing the nature and operation of s 93A of the Act, recorded that the power created by the section existed to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. Their Honours suggested that where further evidence, if accepted, would demonstrate that the order under appeal is erroneous, that further evidence should be admitted and an appeal allowed in consequence of so doing.
In this case, to the extent that it falls within s 93A of the Act, the further evidence of relevance is that the appeal against the trial Judge’s orders in the substantive proceedings can and will be heard by the Full Court next Tuesday, 17 May 2011. The significance of that further evidence will become apparent shortly.
The submissions of Counsel for the father in essence asserted that the best interests of the child would be served by her having fewer rather than more moves. It was submitted in support, principally of ground 3, of the father’s Notice of Appeal against the trial Judge’s refusal to grant a stay, that, as the background which the Court has earlier provided in these reasons makes clear, the child has already been moved a number of times. It was accordingly submitted that the prospect of the child having to return to Australia for a further hearing, if the father’s appeal succeeds, only to perhaps then either have to resettle in this country or move yet again to the United States, suggested that the discretion of the trial Judge should have been exercised to grant a stay.
In the alternative, in reliance upon the further evidence with respect to when the substantive appeal will be heard, Counsel for the father submitted that, whilst not conceding that such was the case, even if appealable error were not demonstrated with respect to the trial Judge’s reasons for refusing a stay on 29 April 2011, the further evidence in relation to the hearing date of the substantial appeal would demonstrate error on his Honour’s part.
Counsel for the mother, with respect, sensibly recognised the different landscape which confronted him in the appeal by virtue of the further evidence, and sensibly acknowledged the effect of that on the submissions that might usefully be put on behalf of the mother,. Within these constraints, Counsel raised everything which could properly have been raised in opposition to the father’s appeal.
In summary, the submissions of Counsel for the mother related to the presumption against a stay created by the legislative provisions which bind this Court in the dispatch of its business; the entitlement of his client to the fruits of her success; the presumption that the decision of the trial Judge was correct; the absence of any suggestion on the part of the father, and there is no such suggestion, and sensibly so, that to refuse a stay would not render nugatory success on appeal; that, having regard to the principles governing the appeal against the trial Judge’s order in the substantive proceedings, the appeal was likely to fail, although, it was fairly conceded, not demonstrably hopeless; the fact that the maternal grandmother, who has come to Australia in the hope of facilitating the child’s return to the United States pursuant to the trial Judge’s orders, must return there to assist the mother in her confinement to give birth to a child on 25 May 2011; and the fact that, as the trial Judge found, the child had spent much more time, wherever that time was spent, with her mother than with her father since the parents’ separation.
Counsel for the ICL adopted the submissions of Counsel for the father.
For reasons which I will now suggest, I pass over the grounds of appeal to the further evidence application.
In his reasons for judgment refusing to grant a stay, the trial Judge referred to the submission of the father in relation to the desirability of the child having fewer rather than more moves. His Honour was clearly alive to the submission on behalf of the father (see paragraph 3 of his reasons) as to the possible disruption for the child in being returned to the United States, and possibly having to face a situation where she was returned under Court order from the Full Court of this Court to return to Australia.
His Honour, for reasons which he gave (see paragraph 4), rejected the submission of Counsel for the ICL that to grant a stay was really only to facilitate the child “remaining in a situation which is broadly consistent with what she has been in now for some months.”
Then, having referred to what was undoubtedly the appropriate authority, the decision of the Full Court in Clemett & Clemett (1981) FLC 91-013, the trial Judge said (at para 5):
It would take some time for the father’s appeal to be heard and reasons to be completed, I would have thought at least some months and it could be some considerably longer period than that.
The effect of the further evidence, which clearly was not before his Honour and could not have been, is to suggest a materially different scenario to that which presented itself before his Honour. For my part, having regard to the matters which were relevant to the exercise of his Honour’s discretion, all of which in my respectful view were traversed by him, a material consideration in the exercise of his Honour’s discretion was the factor to which I have just referred, and which finds expression in paragraph 5 of his reasons for judgment. A balanced reading of his Honour’s reasons for judgment suggests to me that the unlikely determination of the substantive appeal for many months weighed heavily in the exercise of his discretion.
I respectfully conclude, and so doing involves no criticism of his Honour, that the effect of the further evidence is to demonstrate error in not granting a stay, at least for a limited period. For those reasons, in reliance upon the further evidence, I would allow the appeal.
Having so concluded, it is unnecessary to engage with the grounds of appeal appearing in the father’s Notice of Appeal. As suggested to Counsel for the father during the course of debate earlier today, it does appear to me that only ground 3 could possibly have raised a matter of substance. It is unnecessary to speculate about the probable ultimate fate of that ground
The appeal, in my view, being entitled to succeed, the question arises as to what should result. It is common ground that this Court should re-exercise the trial Judge’s discretion and, realistically, unless this Court does, and does so today, there will be little or no point in allowing the father’s appeal.
I do not wish to give extensive reasons in relation to the terms in which I would re-exercise the trial Judge’s discretion. A reading of the transcript would, I believe, reveal that the question of re-exercising the trial Judge’s discretion was canvassed with Counsel for all parties. I do not reiterate the discussion of that issue. I would grant a stay, but I would do so on the basis that, unless the Full Court on Tuesday so orders, the stay would expire at the conclusion of the hearing of the substantive appeal on Tuesday 17 May 2011.
I would make an order in those terms for a variety of reasons, many of which were referred to by Counsel for the mother in the course of his submissions in opposition to the father’s appeal. Most significantly, however, as was discussed with Counsel in debate, the Full Court having heard the substantive appeal next Tuesday will be in a much better position to determine the issues which are relevant to granting or refusing a further stay. The effective presumption against the granting of a stay, which applied before the trial Judge would, in my view, be no different before the Full Court. To the extent that there be an onus, in my view, that onus should fall on the father to persuade the Full Court to extend the stay.
Although perhaps not strictly a condition of a stay, as such, I would make it a term of the limited stay that the father be true to his word and facilitate time being spent between the child and her maternal grandmother, Mrs Simons, from 4:30 pm Friday until 4:30 pm Sunday, with changeover to be facilitated at C Railway Station, and to also facilitate telephone contact between the child and her mother.
I would reserve the costs of this appeal to the Full Court hearing the substantive appeal on Tuesday of next week.
In the event of my colleagues being of the same view, whether for my reasons or others’, it would be necessary to make some directions about the appeal but I think that matter can be dealt with after judgments have been given in the appeal. I invite Justice May to give the next judgement.
May J:
I also would allow the appeal and I would order that the paragraphs 3, 4, 5, 13, 14 and 15 of the orders made by Johnson J on 29 April 2011 be stayed until the hearing of the husband’s appeal, or until further order of the Full Court. I also would order that the costs of this appeal be reserved to the Full Court. I have nothing else to add.
Murphy J:
I agree with the orders in respect of the appeal proposed by the presiding Judge and Justice May. I agree with each of their Honours’ reasons. I also agree with the orders proposed by their Honours in respect of the re-exercise of the discretion and the prospective issue of costs. I have nothing to add.
I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, May and Murphy JJ) delivered on 10 May 2011
Associate:
Date: 13 May 2011
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