FLUVIUM & CARLSON

[2012] FamCA 377

FAMILY COURT OF AUSTRALIA

FLUVIUM & CARLSON [2012] FamCA 377

FAMILY LAW - PRACTICE AND PROCEDURE - Stay of proceedings - Where the Mother applied for a stay of proceedings pending an appeal filed within time - Where the child has been in the Mother's care for seven months - Where the Orders proposed to be stayed Order the child to return to the Father's care on 30 June 2012 - Where the previous operative Orders order that the child live with the Father

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Carlin & Carlin (1977) FLC 90-320
Clemett & Clemett (1981) FLC 91-013
EJK v TSL(No. 2) (2006) 35 Fam LR 590
Federal Commissioner of Taxation v Myer Emporium Limited (1986) 160 CLR 220
Hock Hing v Foster (No. 1) (1989) 13 Fam LR 79
K & B (2006) FLC 93-288
Kelly & Kelly (1981) FLC 91-007
Millar & Millar (1983) FLC 91-326
Molier & Van Wyk (No. 2) (1981) FLC 91-001
Rendall & Rendall [2012] FamCAFC 66

APPLICANT: Ms Fluvium

RESPONDENT: Mr Carlson

INDEPENDENT CHILDREN’S LAWYER: Schultz Toomey O'Brien

FILE NUMBER: BRC 9490 of 2008

DATE DELIVERED: 23 May 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 23 May 2012

REPRESENTATION

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms L. Toomey

Orders

1. The Application in a Case filed by Ms Fluvium on 23 April 2012 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fluvium & Carlson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9490 of 2008

Ms Fluvium

Applicant

And

Mr Carlson

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Following the hearing of the trial of parenting proceedings between the parties and associated applications over a total of some ten days spanning October to December 2011 and January 2012, I delivered final parenting Orders and reasons on 6 February 2012.

2. The Mother filed a Notice of Appeal on 2 March 2012, which was within the relevant appeal period, seeking that, in effect, my Orders be set aside and that the Full Court make Orders which would see D (“the child”) ordered to reside with her and for the Mother to have sole parental responsibility for him.

3. On 23 April 2012, the Mother filed an Application in a Case seeking, in paragraph 3, that the Orders made on 6 February 2012 be stayed pending the hearing and determination of the appeal proceedings referred to.

4. Rule 22.11 of the Family Law Rules 2004 (Cth) expresses the power of the Court to grant a stay of the operation or the enforcement of the Order appealed from. As I raised with the parties at the outset of the hearing of this application, the authorities make plain that a stay will not be granted lightly, or as a matter of course. The onus rests with the Applicant, and in an appeal from parenting Orders, the following inter-related matters are of relevance:

   a)The child’s best interests are not paramount but are likely to be important, as are the circumstances of the child at the time the Orders are made;

   b)Whether refusing the appeal would render the appeal nugatory;

   c)The entitlement of the other party to the fruits of the judgment at first instance;

   d)Any hardship caused by the granting or refusal of a stay;

   e)The merits of the appeal – whether it is based on substantial grounds and is brought bona fide or is just a mere delaying tactic;

   f)Any delay in seeking the stay; and

   g)Whether the appeal can be dealt with within a reasonable period of time.

5. The authorities to which I refer include EJK v TSL(No. 2) (2006) 35 Fam LR 590; K & B (2006) FLC 93-288; Clemett & Clemett (1981) FLC 91-013; Millar & Millar (1983) FLC 91-326; Carlin & Carlin (1977) FLC 90-320; Kelly & Kelly (1981) FLC 91-007; Molier & Van Wyk (No. 2) (1981) FLC 91-001; Federal Commissioner of Taxation v Myer Emporium Limited (1986) 160 CLR 220; Hock Hing v Foster (No. 1) (1989) 13 Fam LR 79.

The child’s interests and his circumstances at trial

1. Since the 1995 amendments to the Family Law Act 1975 (Cth), the granting of a stay is not itself a parenting Order within the meaning of the Act, and the requirement in s 60CA, that the child’s best interests are paramount, does not apply, although the child’s interests may be very important, and will often carry great weight on an application of this kind.

2. In K & B (2006) FLC 93-288, one of the cases to which I have referred, the Full Court said, at paragraph 24:

   There is no dispute in this case that the appeal is based on substantial grounds, that it is brought bona fide and is not a mere delaying tactic, that expedition of the appeal is sought and it can be dealt with within a reasonable period of time. In these circumstances, the questions of the circumstances of the child at the time the orders were made require careful and weighty consideration.

3. The child’s circumstances at trial included that from about October 2008, when he was returned to Australia pursuant to Hague Convention proceedings, he had lived with the Father save for some then-recent periods commencing in July 2011, when he visited the Mother pursuant to Orders. Thus, the child having been born on 5 June 2006, he was about two and a half years of age when he was returned from Canada to Australia and into the care of the Father, and it was his experience of primary care with the Father and the paternal family in Australia on and from his return until he was about five and a half years old when the trial commenced.

4. Thus, from the age of about two and a half years, the child’s relationship with the Mother was facilitated over the following approximately three years until the trial mainly by web-based communication and telephone, other than for the July 2011 period, shortly before the trial, when Orders for a visit to the Mother came into effect. The child spent time with the Mother and his brothers in Canada pursuant to those Orders for the period between July and September 2011, but was returned to his father’s care as at the commencement of the trial.

5. During the trial stage of these proceedings on 17 November 2011, I made an interim Order for the child to have a further visit to the Mother in Canada and the Order then made contemplated the child returning to the Father on or before 17 January 2011. Pursuant to that Order, the child travelled to Canada on or about 10 December 2011. In the event, the trial evidence was re-opened by the Father and the return date originally contemplated at 17 January 2012 was extended. As already noted, I delivered my reasons and made final Orders on 6 February 2012.

6. As can be gleaned from the reasons for judgment then delivered, there were two imperatives met by extending the child’s time with the Mother beyond the original return date of 17 January 2012. First and foremost, an issue at trial was the Father’s propensity to suffer Adjustment Disorders, and Dr V raised the possibility of the Father suffering an Adjustment Disorder depending upon the outcome of the proceedings and the Father’s response to that outcome and the possibility, however unlikely, of that presenting a risk to the child if the child was in the Father’s care. A course of psychotherapy was recommended by Dr V and indeed was ordered as part of the final Orders made.

7. Second, in terms of the imperatives, both parties presented at trial as being of limited financial means and financially could not afford regular trips for the child, and the necessary accompanying adult given the child’s age, for air travel between Canada and Australia on a frequent basis. Thus, the final Orders made included provisions in a somewhat detailed way for the Father to undertake psychotherapy and provision for the Father to demonstrate his response to that therapy by the time of the proposed return of the child to Australia and his care by the end of June 2012.

8. In short, provision was made in the Orders for the child to return at the end of June 2012 to the Father’s care provided that the further relevant medical evidence to be provided by the single expert at the trial, Dr V, demonstrated that there was no relevant or material risk to the child’s safety or welfare.

9. Plainly enough, against the background that the current visit of the child to Canada commenced on or about 10 December 2011, a return as contemplated by the Orders at the end of June 2012 would provide a total period of about 7 months for the child to have been in his mother’s care, and having regard to the child’s still young age, that is a significant period of time against the background to which I have referred with regard to the child’s previous experience, since he was two and a half years of age, of the child being in the Father’s primary care from then until trial. I find, that having regard to the child’s age and the background briefly referred to but dealt with in some detail in my reasons for judgment delivered on 6 February 2012, it could not be said to be in the child’s best interests for the time away from his father to be further extended at this point, and this factor assumes, I find, very significant weight on this application.

10. My final Orders as framed were designed to allow the child to spend six month block periods alternating between his parents in 2012 and 2013, having regard to the child’s age, the early stage of his formal education, and having regard also to the financial constraints of his parents to which I have already referred. Those Orders provided mechanisms, as I have referred to, for a further report to be obtained from Dr V, the single psychiatric expert, in advance of the proposed return at the end of June 2012. In the event, in this application before me, an affidavit by Dr V has been filed on 18 May 2012, attaching Dr V’s report dated 16 May 2012 and based upon his interview of the Father on 2 May 2012, together with other steps taken by Dr V; including consultation with the Father’s treating psychiatrist, Dr IH.

11. Dr V undertook an interview, and it appears a relatively detailed interview, with the Father, and he also undertook a mental state examination of the Father in the course of that exercise. Dr V reviewed documentation and other information for the purpose of preparation of his report, including more recently filed material, together with the Orders and reasons for judgment of 6 February 2012. Relevantly, Dr V makes the following points:

    (i)[The Father] is not suffering from any depressive illness or Adjustment Disorder at the time of the assessment. He presents well and does not suffer from any psychiatric illness.

    (ii)The personality vulnerabilities that I discussed in my previous reports in my evidence at the court, which have been alluded to by His Honour in the reasons for judgment, by definition remain underlying as an psychopathology. I note, however, that [the Father] has shown a capacity to adapt to changed circumstances in a positive way which indicates that there are personality strengths.

    (iii)Overall, [the Father’s] psychosocial functioning is quite good, which again indicates positive adaptive capacity, with the exception that he has not been able to find full-time work. He reports being diligent in looking for employment, and hopefully this is correct. There is certainly no psychiatric or physical impediment to him finding work.

    (iv)It does not seem that [the Father] has been able to access the kind of psychotherapy I had in mind when I advised the court about this. He is seeing a psychiatrist every month for what sounds like supportive psychotherapy. This may well be indicated at the present time given [the Father’s] circumstances, but what I had in mind was more intensive psychotherapy addressing issues within the personality. It may in fact be unrealistic to expect that [the Father] will be able to access such psychotherapy or be able to afford the same, and his current supportive therapy may be all that can be realistically provided at the time.

    (v)Overall, there is no psychiatric contraindication for [the Father] being able to care for the child on his return from Canada shortly, and on current indications, I believe he will be able to cope and adapt to the child being away in Canada for another six months at a later point in time.

    (vi)I do not believe that any previous issues of risk that I raised with the court in my evidence at the court applies in the current circumstances or in the foreseeable future.

12. Dr V also notes that he intends to speak to the Father’s treating psychiatrist and to prepare an addendum report following that conversation. Plainly enough, Dr V does not identify any safety issue in relation to the child in returning to his father at the end of next month.

13. As I noted during the course of the hearing this morning, it is to be remembered that Dr V raised the possibility of risks to the child in the context of the final outcome, then not known by Dr V in terms of the final Orders made, which might have included Orders for, ultimately, the child to live with the Mother and for her to have sole parental responsibility. Clearly enough, Dr V had to have that possibility in mind in terms of the assessment when he raised the possibility referred to. In the event, as is also obvious, that was not part of the final Orders made in February 2012, so that the possibility raised by Dr V of the Father suffering Adjustment Disorder in reaction to the outcome of the proceedings has to be considered in that light, taken together with his current report and opinions, which I accept.

14. The Mother seeks to raise, belatedly in terms of advancing the evidence before the Court, the suggestion that the Father is continuing to deal drugs. That was an issue at the trial and it is discussed at some length in the reasons for judgment. The Mother seeks to rely upon affidavits filed only yesterday, to which the Father has had no opportunity to respond, attaching what are said to be text messages said to constitute evidence that the Father continues to engage in the dealing of drugs. Having read the text messages, it is far from clear to me that that is what the text messages must be, as the Mother would contend. As I note, in circumstances where the Father has been given no opportunity to respond to that, there is no explanation, in affidavit form, from the Father, but he told me from the Bar table that given an opportunity to explain the texts, he would be able to explain those messages.

15. The issue of drug dealing, and it was the Mother’s contention at trial about the Father dealing drugs, was the Mother’s contention that throughout the relevant period, the Father has dealt drugs. That is, at all times from the time of their relationship throughout the period to the time of the trial, that he was dealing drugs. In that context, it is to be noted that the Orders made in July 2011 for the child to spend time in Canada also had the corollary that the child was to be returned to the Father at the conclusion of that period. The Mother did return the child at the conclusion of that period, notwithstanding that it was then part of her case, as it is today, it seems, that the Father engages in drug dealing.

16. I cannot make conclusions on that kind of disputed and untested evidence, given belatedly yesterday, without any opportunity for the Father to respond adequately to it. In my view, however, in the end this constitutes what might be termed “more of the same” in terms of issues agitated at trial that have been dealt with. To the extent that it amounts to fresh evidence, as the Independent Children’s Lawyer rightly submitted, the Mother can advance an application in the appeal proceedings for leave to adduce fresh evidence as part of the appeal process in having the Full Court review the Orders of 6 February 2012.

17. I find that the child’s interests ought assume significant weight on this application, if not determinative weight, and for the reasons identified, read in the context of my reasons for judgment delivered 6 February 2012, I find that the child’s interests weigh heavily against the granting of a stay in circumstances where granting a stay would see the extension of the child’s time with the Mother in Canada when he has already been there since 10 December 2011 against the background to which I have already referred.

18. Generally speaking, in parenting cases, status quo may loom large on stay applications in those cases where the final parenting Orders disturb a status quo situation in terms of residence; that is, if the status quo has been that a child or children have been living with parent A, and the final Orders are Orders for the child to reside with parent B, the status quo often looms large as a factor in a stay application because of the need to avoid changes of residence brought about by the trial Orders being given effect and then an appeal Court determining otherwise. There is, in this case, however, no existing Order for the child to reside with the Mother. Indeed, the previous Orders are all to the effect that the child ought reside with the Father and there is no issue of status quo in the relevant sense given the background to which I have referred.

Whether refusal of the stay renders the appeal nugatory

1. The primary Orders sought by the Mother in her appeal are that Orders be made for the child to reside with her and for her to have sole parental responsibility. Refusal of a stay does not render the Mother’s appeal nugatory in that respect. Whilst the Mother agitates complaint in the appeal proceedings about Orders for the child to return to the Father vis-à-vis the psychotherapy, the relevant consideration is that the final Orders provided a mechanism for that to be addressed, to which I have already referred, and that mechanism has been met by the current report of Dr V.

2. The primary matters agitated by the Mother on the appeal are not rendered nugatory if a stay of the Orders is refused.

Entitlement to fruits of the judgment and hardship

1. As each of the parties, including the Independent Children’s Lawyer, did not consider that on this application, the factor of the entitlement of the other party to the fruits of the judgment at first instance or any hardship caused by granting or refusing a stay loomed as significant on this application, I need not deal with them in any detail. The only issue raised concerning hardship was again by reference to the child and his best interests and potential hardship to him.

Merits of the appeal and whether it is brought bona fide

1. As to the question of merits of the appeal and whether it is based upon substantial grounds and is brought bona fide and is not merely a delaying tactic, one of the matters on this particular application and in respect of this particular appeal is that it is an appeal with respect to a discretionary judgment. There is ample authority as to the difficulties an appellant faces in terms of contesting a discretionary judgment where a trial judge also has the advantage of seeing and hearing the witnesses, which an appeal Court does not have.

2. In a judgment delivered only last week by the Full Court in Rendall & Rendall [2012] FamCAFC 66, Coleman J observed this at paragraph 13:

   As suggested to the respondent, there is a presumption that the decision of the trial judge is correct. The hurdles to success with an appeal of this kind are well-known, and little short of monumental. I say that particularly given the trial judge’s reasons, and the extent to which his Honour’s reasons for judgment turn upon what in the appellate lexicon is generally described as “the trial judge’s advantage”. I am also conscious of decisions of the High Court, commencing with House v The King (1936) 55 CLR 499, and proceeding consistently thereafter to the present day. And in the context of parenting proceedings, to decisions of the High Court such as Gronow v Gronow (1979) 144 CLR 513, and in particular, to the judgment of Stephens J.

1. Those matters noted, it seems to me that the matters raised by the Mother on her appeal are matters of substance and that the appeal is brought bona fide and not simply as a delaying tactic. The fact that the Mother faces what has been described as, “…monumental,” hurdles by Coleman J, does not mean I can simply conclude that the appeal is demonstrably hopeless or necessarily doomed to fail.

2. In terms of any delay in seeking the stay, it is the fact that, following my final Orders on 6 February 2012, the Mother did not apply for a stay until, as referred to, this application filed on 23 April 2012. I do not consider that delay to be significant in the context of this case as a ground for refusing the stay.

Whether the appeal can be dealt with within a reasonable period of time

1. I have already made reference to the decision of the Full Court in K & B (supra). It is to be noted that the Full Court focussed, in the quote to which I have referred, upon the feature that expedition of the appeal was sought (unlike in this case); and there was the conclusion that the appeal could be dealt with within a reasonable period of time. Obviously, what is reasonable depends upon the circumstances of the particular case. In this case, I have referred already to much of the background in terms of the child’s present circumstances, and his age, the period of time he has been with the Mother, and significantly, the period of time he has been away from the Father’s care in the context of his history of care from the time he was two and a half years of age.

2. I find that in circumstances where the information is that this appeal is unlikely to be heard until the first half of next year, and then whatever further time that might be taken for the delivery of a judgment from the Full Court, are significant factors in terms of assessing that reasonableness. Questions have also been raised both by the Father and the Independent Children’s Lawyer in their respective submissions as to the Mother’s capacity to ensure that the appeal is heard in a timely way, even within the time framework that I have referred to, by the obtaining of the appeal record, which will be at a substantial cost. The Mother as at trial was on social security, or its equivalent in Canada, and there is no evidence before me that her financial circumstances have particularly improved.

Conclusion

1. Balancing all of the relevant considerations, I conclude that the application for a stay should be refused and I refuse to Order a stay and I dismiss the Mother’s application.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 23 May 2012.

Associate: 

Date:  24 May 2012