Fisk and Raby and Ors - [2009] FMCAfam 483

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FISK & RABY & ORS

[2009] FMCAfam 483

FAMILY LAW – Appeal – application of stay in operation of children’s orders pending hearing of appeal – matters to be considered.

Fauna Holdings Pty Ltd and Others v Mitchell (2000) FLC 93-053
Clemett v Clemett (1981) FLC 91-013

Applicant:

MS FISK

Respondent:

MR RABY

Other Parties:

MR R & MS R

File number:

BRC 7595 of 2008

Judgment of:

Brown FM

Hearing date:

9 April 2009

Date of last submission:

9 April 2009

Delivered at:

Adelaide

Delivered on:

9 April 2009

REPRESENTATION

Counsel for the Applicant:

Ms T.C. Lewis

Solicitors for the Applicant:

Norman Waterhouse Lawyers

Counsel for the Respondent:

Ms Bailey

Solicitors for the Respondent:

Websters Lawyers

Counsel for the Other Parties:

Ms Bosko

ORDERS

Order 7(a) of the orders made on 6 April 2009 be stayed and in lieu thereof the following order be made:
The father spend time with the children [X] born in 2002, [Y] born in 2003 and [Z] born in 2006 on alternate Saturdays from 10:00am until 5:30pm commencing 11 April 2009.
Order 9 of the orders made on 6 April 2009 be stayed and in lieu thereof the following order be made:
The father’s time spent with the children be subject to his availability as a result of his employment the onus which shall be on the father to provide written proof of his unavailability to spend time with the children due to his work commitments as soon as practicable and where necessary the father be permitted to alter arrangements for his time spent with the children by giving the mother notice in writing one week prior to the arranged time for him to spend time with the children such that he might make up any missed weekends on the following weekend where necessary.
Order 10 of the orders made on 6 April 2009 be stayed and in lieu thereof the following order be made:
The father communicate with the children each Wednesday at 5:30pm (Australian Central Time) with the mother to ensure the children ring the father on a landline number to be provided to her.
The matter be adjourned for further consideration and if necessary to allocate a date for final hearing on 19 May 2009 at 9:30am when it is anticipated the independent children’s lawyer will be appointed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

BRC 7595 of 2008

MS FISK

Applicant

And

MR RABY

Respondent

MR R & MS R

Other Parties

REASONS FOR JUDGMENT

(delivered ex-tempore)

The matter of Raby & Fisk is listed before me this morning. The applicant in the proceedings is Mr Raby and the respondent is Ms Fisk.
They are respectively the father and mother of three children: [X], who was born in 2002; [Y], who was born in 2003; and [Z], who was born in 2006.
The proceedings also involve Mr & Ms R; they are, respectively, the paternal grandfather and grandmother of the three children.
On 30 March 2009 I dealt with competing applications brought by the parties regarding interim arrangements for the care of those three children, particularly the time which they should spend with their father and grandparents and any conditions which should relate to that time.
On 3 April 2009 I published some reasons which related to the hearing and made some orders in respect of the parties' competing applications. These reasons should be read in conjunction with those earlier reasons.
Today I am dealing with an application which has been brought by

Ms Fisk, the mother, and which was filed on 8 April 2009. She has filed a notice of appeal in respect of the orders which I made. She did that, I think, on 8 April 2009.
Accordingly, it cannot be said that she has wasted any time in bringing her appeal. Concurrently, with the appeal, she has made an application to me to stay some of the orders which I made on 6 April 2009, pending the hearing of her appeal.
Essentially, the grounds of the appeal are that I erred in the exercise of my discretion in terms of what time the three children should spend with their father and gave insufficient weight to the opinion and evidence of Ms Cole, who is a psychologist who prepared a family report in this matter, and also gave insufficient weight to some observations of Ms Roxanne Nathan, who oversaw a process of the children concerned spending time with their father, and on one occasion their grandparents, at the [C] Children's Contact Centre.
The reasons for judgment that I prepared are, I think, lengthy. The issue with which I primarily dealt on 3 April 2009 was this. It was the mother's position that, at the interim stage, the court ought to be very cautious about whatever arrangements it made for the father to spend time with the children.
Further, it was the mother's position that the best option for the children was if the process of supervised time at the children's contact centre continue. When I say "supervised time" what I mean was a process of rigorous professional supervision involving a worker observing who noted everything in respect of the interaction of the children with their father and that process itself occurring in the secure premises of the children's contact centre.
The father's position was that his relationship, particularly with the two older children, was under threat. He was concerned that immediate steps needed to be taken to repair his relationship, particularly with [X] and [Y], and for that reason what he wanted was for him to be able to spend a period of time of four consecutive days with the children during the forthcoming school holidays, as I recall. Also, more importantly, in the circumstances of this matter, we wanted to be able to spend a long weekend with the children on a fortnightly basis. That would involve, obviously, overnight time.
What I said in the judgment - this is at page 53 at paragraphs 288 to 290 - was as follows:
As I understand it the hours of operation of the children's contact centre at [C] are limited. It is open for handovers between 5 pm and 6.30 pm on Fridays, 10 am and 11.30 am on Saturdays, and 4 pm and 6 pm on Sundays. Accordingly, it is not possible for the centre to offer a service for handover on two occasions on any one day.
I have come to the conclusion that the father's proposals for the children to spend time with him are too ambitious, given the complex dynamic of this case. Certainly they are not in line with the recommendations of Ms Cole and I believe that, at this interim stage, I would be imprudent to easily dismiss those recommendations.
My preference would be for the father to spend a long day with the children each fortnight, with the children to be exchanged at a neutral and supervised setting. This is not possible, given the hours of opening of the [C] centre and the lack of alternate handover mechanisms.
As a result of that, I made orders for the father to spend time with the children on alternate Saturdays, from 11 am on Saturday until 5 pm the following Sunday. That was to start this forthcoming Saturday, 11 April 2009.
I have been provided in the affidavit of Ms Parker, the mother's solicitor, with a brochure from Relationships Australia which indicates that the changeover service at each of Relationships Australia's contact centres, including [C], is between 10 am and 5.30 pm on Saturday, and 10 am and 6 pm on Sunday.
I have had a member of my staff, late yesterday afternoon, check with Ms Nathan and she confirms that this is so. On an earlier occasion another member of my staff, my deputy associate, made similar inquiries with the contact centre and that was the source of my misinformation.
In my own defence, I point out that neither of the parties' counsel, on the date of hearing - 30 March 2009 - made any submission in respect of the hours of the contact centre. However, having said that, I accept that the error is mine.
Having accepted the error, however, that I think raises a clear ground of appeal, regardless of how it came about. In my reasons for judgment I clearly express my view that I had come to the conclusion that it would be in the best interests of these three children for them to spend a long day, away from the contact centre supervision, with their father, but, for the reasons I have already expressed in the judgment, I was of the view that the parties needed to exchange the children concerned in very secure circumstances.
Accordingly I am - as I said, I think, to Ms Bailey, Mr Raby's solicitor - hoist on my own petard in regards to that ground of appeal.
At this stage the mother also wishes me to suspend other aspects of my orders. Those orders deal with what should occur in the eventuality that Mr Raby is unable to come from Brisbane to Adelaide to spend time with the children.
She is critical of the order which I made, in the sense that she believes that it may enable Mr Raby to change the weekend in question capriciously and for reasons which relate to matters other than to his employment roster.
More controversially, she objects to an order that I made that each party facilitate and encourage telephone communication between the children and the other party, at the request of the children or the other party, and each party provide a telephone contact number for this purpose.
On 30 March 2009, as I recall, there were no specific submissions from the parties regarding telephone communication between the children and their father. In addition, there were no submissions made regarding the mechanisms that should be put into place if the father was unable to come to Adelaide to spend time with the three children due to his work commitments.
I should say that Mr Raby is employed by [omitted]. He is [occupation omitted]. Accordingly, he works on a roster: four days on; four days off. He lives in Brisbane, although it is his hope to be able to move to Adelaide; Ms Fisk lives in Adelaide at present and as far as I know intends to remain living in Adelaide. How the parties came to be living in different capital cities is controversial, and I will not repeat the history of the matter, which is set out in the judgment.
I think Mr McGinn, counsel for Mr Raby, on 30 March 2009, indicated that, for pragmatic reasons, his client had a willingness to assume responsibility for all of the practical difficulties which arose from the parties living in separate states.
On that basis, without perhaps a great deal of thought, I adopted what Mr McGinn proposed in a minute of orders sought on behalf of his client, which was provided to me at the start of the interim hearing.

Ms Parker, counsel for Ms Fisk, did not specifically allude to the document or oppose it.
Given the emphasis of the hearing, I did not shape the hearing in such a way or ask any questions of either party's counsel about those two particular orders but rather made the orders because I perhaps erroneously reached the conclusion that they were not particularly controversial.
In terms of the work roster issue, I do not think that is a particularly complicated issue. I invited the parties to perhaps discuss with one another some mutually agreeable mechanism whereby the father could advise the mother in some way if he was not going to be coming to Adelaide on any particular weekend and something else could be put in place, it being the mother's concern that she does not want to be beholden, on every particular weekend, to know whether the father is or is not coming. Anyway, that perhaps bore some fruit, but certainly nothing was reduced to writing.
In terms of the issue of telecommunication, as I remarked to Ms Bailey I adopted what Mr McGinn sought without any embellishment or change. The order is not a particularly easy one to see how it could be enforced; no specific time is included. From the mother's perspective, she is concerned at any prospect of the father having her telephone number.
It is her case that Mr Raby is a violent and pathologically unstable person who may use the phone number, if he has it, for some maligned purpose. I hasten to add that Mr Raby denies that he suffers any such psychological imbalance and it is his position that he is a mild-mannered person, a view which is supported by a psychologist, Mr Q, whom he consulted I think in 2003.
At this stage I am not in a position to make any concluded findings of fact about that aspect of the case. However, as I understand it there is not a family violence order in this matter - I do not think I have been told about one, anyway - and I do not think it has been suggested to me by the mother, in any of the material that she has filed to date, that she has been subject to any contact from Mr Raby which has been untoward, since she moved to Adelaide, apart from one incident when the parties unwittingly came into contact with one another at the [C] Children's Contact Centre on one of the supervised visits.
It is the father's case that it is he who was the victim of a threat, rather than vice-versa, although, as I recall, Ms Fisk does say that this is something that Mr Raby has trumped up to serve his own ends. Again that is an issue that I cannot resolve in the context of these proceedings.
So that is the background to the stay application which I have to deal with now.
Rule 22.11 of the Family Law Rules deals with stay orders pending appeal. It reads as follows:
(1) The filing of a notice of appeal does not stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision.
(2) If an appeal has been started, or a party has applied for leave to appeal against an order, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application relates.
(3) An application for a stay must be filed in the Registry in which the order under appeal was made and be heard by the judge, federal magistrate or magistrate who made the order under appeal.
Accordingly, it is clear a stay is not to be granted to an appellant as a matter of course. It is clear from authorities such as Fauna Holdings Pty Ltd and Others v Mitchell (2000) FLC 93-053 the question of whether to refuse or grant a stay is a discretionary decision. However, the discretion is not an unfettered one and must be exercised according to criteria laid down by the superior courts. The guidelines I think can be summarised as follows:
(i)whether refusing a stay will render a successful appeal nugatory; that is, will it make it impossible to restore the situation prior to the decision appealed against.
(ii)a consideration of the merits of the appeal;
(iii)whether there has been any delay in applying for a stay;
(iv)the bona fides of the application for the stay;
(v)the time when the appeal is likely to be heard.
In terms of the merits of the appeal, for the reasons I have already provided, it is clear that there is merit to the appeal, in the sense that there is an error into which I fell regarding the hours of opening of the contact centre concerned, and that, I think, is clearly a matter that can be remedied on appeal.
In terms of the other matters, I do not think it is necessary for me to comment on those in any detail in respect of the reasons for judgment I delivered per se, other than to say that this is an appeal from an exercise of discretion and it is necessary for the mother to establish that my discretion has clearly miscarried. The appeal is not of itself a hearing de novo.
Obviously there has been no delay whatsoever in applying for the stay and I do not think the bona fides of the application can be criticised in any way. Certainly the orders regarding the father's roster and the telephone contact between him and the children was not the subject of any detailed submissions at all.
The hearing on 30 March was infused with a considerable level of emotion. From the mother's point of view, she and her counsel concentrated on the issue of whether there should be a move away from the strict professional supervision. They did not allude in any detail, if at all, to the issue of telephone communication between the children and their father.
Due to the shortness of the time frame which has elapsed between the application today and the filing of the appeal, it is not clear when the appeal can be heard. If the matter goes in the normal process, it will be heard in November, but I would have thought that application can be made to expedite the appeal and I would have thought, ordinarily, that it could be heard fairly expeditiously.
The overriding rule in respect of granting any stay concerning a child is how the best interests of the children concerned will be affected by either the refusal or granting of the stay application and, in turn, weighing and balancing the potential prejudice to each of the parties arising from each possible outcome.
In Clemett v Clemett (1981) FLC 91-013 his Honour Nygh J said 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 the proceedings for at least a short period.
In this case, for all of the reasons I provided on 3 April 2009, I think it would not be satisfactory, from [X], [Y], and [Z]'s points of view, if their relationship with their father is not advanced in some way or other. Accordingly, I would not be minded to grant a stay of the orders in such a way that it would mean that the children spend no time whatsoever with their father. I think that would be unsatisfactory and would not serve the children's best interests.
I reach that view because, in this case, the three children concerned have spent what can only be a handful of hours with their father since the parties separated on 1 May 2008.
On 3 April I determined that the best interests of the children would be served if at all possible they could spend time with their father away from the contact centre concerned, and my preference was that they should spend a long day with their father. Erroneously, I formed the view that that could not occur and I made the orders that I did.
On the basis of a consideration of the best interests of the children concerned, and weighing and balancing the prejudice to each of the parties concerned - and particularly the merits of the appeal - I have come to the conclusion that I have to stay order 7(a) of my orders made on 3 April 2009 and in lieu thereof make an order for the father to spend time with the children from 10.00 to 5.30 pm on alternate Saturdays, commencing 11 April 2009.
In terms of the written roster, I am not greatly troubled by that and, in exercising my discretion to stay my order, I think it would not be in the best interests of the children if I did not at least leave some mechanism whereby Mr Raby is able to advise if he cannot attend.
What I propose is to stay order 9 and in lieu thereof make an order that the father's time with the children be subject to his availability as a result of his employment, that the onus will be on the father to provide written proof of his unavailability to spend time with the children due to his work commitments alone, as soon as is practicable, and, where necessary, the father be permitted to alter arrangements for his time spent with the children by giving the mother notice, in writing, one week prior to the arranged time for him to spend time with the children, such that he might make up any missed weekends on the following weekend where necessary.

The issue of Mr Raby communicating with the children by telephone is controversial. I was not directly informed of how controversial it was during the course of the hearing before me on 30 March 2009. I think it could be argued that I fell into error because I assumed that it was not a controversial issue, because the mother did not specifically speak against the order which Mr Raby's counsel sought. On that basis, balancing all the necessary considerations, I have reached the conclusion I ought to stay order 10 of my order. As I say, I am empowered to make a stay on conditions I think are appropriate.
In the lengthy judgment I did not allude to the issue of telephone communication at all and there was no particular argument or submissions made about it. The question arises as to whether, at this stage, it is appropriate for me to make a more specific order for the father to be able to talk with the three children concerned. It is also my recollection, and I might be mistaken about this, that Ms Cole, in her family assessment report, did not speak of the issue of telephone communication.
I think I am probably in a position to be able to summarise each of the parties' respective positions fairly accurately, even though neither of them has made specific submissions about it.
From the mother's point of view, she will be fearful if she thinks

Mr Raby has her telephone number and at the possibility of him misusing that telephone number. She will be concerned at the father's electronic presence potentially coming into her home.
I suspect she will also say that it will be very difficult for her to encourage either [X] or [Y] to speak with their father on the telephone. She will say, metaphorically, that they will be able to be led to water but will not be able to be made to drink.
From the father's point of view, he will say that, due to no fault of his own, he is living many thousands of kilometres away from the children whom he deeply loves. He would want to be able to be a living presence in the lives of the three children and have an opportunity to touch base with them regularly, to tell them that he thinks of them, that he loves them and perhaps to hear what sorts of things they have been doing whilst he has been away from them.
It will be his position, no doubt, that such a process will ensure that the children at least have a little sense that he is a part of their lives. That will be of some benefit to them and will also support his relationship with the children concerned, which from his perspective is under great threat at present.
No doubt it would also be his position, I think, that [Z], who has just turned three, would be delighted to be able to chat with him on the phone because, regardless of what the positions of [X] and [Y] are, there is no suggestion that [Z] does not look forward to seeing his father with enthusiasm.
I concede that the order I made in regard to telephone communication was not thought through, for the reasons I have provided. On that basis I have come to the conclusion that it is likely to be in the best interests of the children, at this stage, notwithstanding the difficulty and the mistrust between the parties, that I make some modest order which will have the potential for the children to be able to communicate with their father by telephone.
The difficulty of course is this. Mr Raby works for [omitted]. He is regularly [unavailable]. He works on a four-day-on four-day-off roster, which rotates. It is difficult if not impossible for him to predict when he will or will not be [available].
Mr Raby is part of the modern workforce. The days when individuals, particularly men, worked from 9.00 till 5.00, Monday to Friday, are gone.
Now, people who are involved in communication and transport and air travel and all manner of other industries work flexible hours. They are at the beck and call of consumers who expect services to be available - to use the cliche - 24‑7. So it would be difficult for Mr Raby to be available to take a call from the children at some specified time or times each week.
The parties themselves will have no capacity, at this stage, to agree on some flexible regime. That, I suspect, is the error into which I fell when I made the order on 6 April 2009, at Mr McGinn's instigation. It was perhaps hopelessly and naively optimistic that there could be some flexible regime between the parties.
Earlier today I invited them - that is, the parties and their lawyers - to see if they could come up with something that might overcome these difficulties, and they were not able to.
What am I to do? Do I just simply wash my hands of it and say, to the Court of Appeal, "You fix it up." I think I would be remiss in my responsibility if I did that to these children because I think it is likely, on balance, to be in their interests if they are able to have some sort of telephone communication with their dad.
At this point I am left with the unhappy dilemma of either nominating some artificial time or just leaving it be. On balance, I have come to the conclusion that I should just nominate a time. Whether it works or whether it does not, I do not know.
The other thing is - against the opposition of the mother, as I recall - on 6 April I ordered that the three children be independently represented, and the matter was adjourned until 19 May. That is, as I recall, about six weeks away. One of the roles of an independent children's lawyer is to be an honest broker between the parties concerned, perhaps facilitate them having negotiations with one another and perhaps helping them to focus on the best interests of the children concerned, particularly within the matrix of the applicable legislation, which is complicated.
In terms of making orders in respect of children, I am frequently placed in the position where I do not know whether the orders I make will be successful or not. Very often I am called upon to make orders which perhaps have some provisional quality.
The degree of difficulty in this case is great. The reason the degree of difficulty is great is because there is a very high degree of conflict between the parties, particularly in regards to how they view the other. I am fearful, so far as these three children are concerned, that the parties and indeed the court are at the beginning of a long journey together in respect of the appropriate arrangements for the three children concerned.
Although there are many pitfalls in respect of the telephone arrangements, I am going to make an order in lieu of order 10, which has been stayed, that the father have telephone communication each Wednesday at 5.30 pm Australia Central Time, with the mother to ensure the children telephone their father on a landline number to be provided to her.
Whether Mr Raby will be available at 5.30 on each Wednesday, I know not, but no doubt, if he is not, the children can leave a message for him, and the issue can perhaps be revisited at a later stage, either by myself or the Court of Appeal.
The benefit of that arrangement is that the mother will not have to deal with the trepidation of the father ringing her. Anyway, for those reasons that is what I am going to do.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: P Smith

Date: 9 April 2009