G and G (No.2)
[2003] FMCAfam 67
•7 March 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| G & G (No. 2) | [2003] FMCAfam 67 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings – principles to be applied in family law matters – special considerations apply in matters concerning children – best interests of the child paramount. Family Law Act 1975, O.32 R.4 Jennings Construction Ltd v Bergundy Royale Investments Pty Ltd (No.1) (1986) 161 CLR 681 |
| Applicant: | W C G |
| Respondent: | K M G |
| File No: | PAM 961 of 2002 |
| Delivered on: | 7 March 2003 |
| Delivered at: | Parramatta |
| Hearing Date: | 6 March 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Battley |
| Solicitor for the Applicant: | Garvins Solicitors |
| Counsel for the Respondent: | Ms Druitt |
| Solicitor for the Respondent: | Ferrys Law Firm |
ORDERS
The Application for a Stay of Orders made on 6 March 2003 is dismissed.
The Applicant is to pay the Respondent’s costs, assessed according to Schedule 1 of the Federal Magistrates Court Rules at $1,705.00, with three (3) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 691 of 2002
| W C G |
Applicant
And
| K M G |
Respondent
REASONS FOR JUDGMENT
The Applicant, who is the father of three children aged 10, 7 and 6 years, applies for a stay of residence and relocation orders made yesterday, pending an appeal to the Full Court of the Family Court of Australia.
Background
The original proceedings were commenced by the Applicant on 9th December 2002, when he applied for an order restraining the Respondent mother from relocating the residence of the three children from the M/G area of New South Wales. In the alternative, he sought that the children should reside with him.
The parties had separated on 30th January 2000 and orders were made by consent in the Family Court of Australia sitting at Bathurst on 10th October 2000 providing that the children should reside with the mother and that the father should have liberal contact. In late 2002, the mother sought to leave G and reside in the W area of New South Wales, an estimated four hours’ travelling time from G. The mother obtained employment with the W Shire Council and, consequently, resigned from her employment with the M Shire Council. She obtained rental accommodation in a suburb of W and obtained a tenant for her house in G. She made arrangements to enrol the children at W Primary School.
The father opposed these steps, hence the above application. On 17th December 2002 I ordered that the Applicant father should have continuous contact with the children until 11th January 2003. The parties had already arranged that the children were to be spending all or most of that time with their father, in any event, and the Application was listed for interim hearing on 10th January 2003.
On 10th January 2003, I made an order restraining both parties from relocating the children’s residence from the M/G area until further order, and made directions for hearing the matter on a final basis.
I ordered a Family Report pursuant to section 62G of the Family Law Act.
The proceedings were heard earlier this week, on 4th and 5th March, and I delivered an ex tempore judgment yesterday. The orders I made were that the children should continue to reside with the mother and that she should be at liberty to relocate with the children to the W area.
Upon the judgment being pronounced yesterday morning, the father’s counsel immediately sought a stay pending an appeal. That afternoon, upon being satisfied that a Notice of Appeal to the Full Court had been forwarded by facsimile to the Registry, I heard the stay application.
Submissions
The Applicant’s submissions were to this effect:
a)An injunction had originally been made to restrain the mother from relocating, and until the Full Court determines the appeal, the matter is still at large.
b)It is almost axiomatic in other jurisdictions that, on the lodging of an appeal, the order is stayed.
c)It is not in the interests of the children (to relocate) and to be enrolled in another school in the hope that an appeal will not be upheld.
d)It cannot be right for the court to consider the time it would take for an appeal to be heard and determined.
e)There was no evidence that the mother would lose her job at W if she were not in a position to commence work on Monday 10th March.
f)The mother has a house in G readily available to her after she gives the present tenants a week’s notice.
g)If I had not had the time to make the decision when I did, the matter would have gone over in any event and the injunctive orders would have continued.
In reply, counsel for the mother referred me to the decisions of the High Court in Jennings Construction Ltd v Bergundy Royale Investments Pty Ltd (No. 1) (1986) 161 CLR 681 and of Watson SJ in Carlin (1977) 3 Fam LN 52; FLC 90-320. She submitted that the applicant for a stay must show special circumstances before a stay will be granted, and the court must consider whether granting the stay would be in the best interests of the children.
The Respondent’s counsel went on to submit that there has been a two-day hearing in which the issues have been fully canvassed, and what the Applicant proposes is that there should either be a change of residence pending the hearing of the appeal or that the mother would lose her job. Neither of those would be in the best interests of the children. It is not desirable to have children “yo-yoing between parents” in between court hearings.
The mother would not be able to obtain vacant possession of her old house for a week. The effect on the mother would be serious, in that she would suffer a financial penalty.
The Respondent’s counsel submitted that, in her experience, appeals from the Federal Magistrates Court to the Full Court were usually heard in about two to three months, and that this should be taken into account.
Principles to be applied
As I understand the law, a stay should not be ordered as a matter or right or as a matter of course. The applicant for an order must establish a ground. Special considerations apply to stays in children’s cases.
Order 32 Rule 4 of the Family Law Rules provides that, subject to subrule (2), “an appeal does not operate as a stay of proceedings or invalidate any intermediate act or proceedings”. The Judge or Federal Magistrate who made the decree appealed from, if reasonably available, (or another Judge or Federal Magistrate) may order a stay, but it is discretionary.
The general principles that should be considered are as follows:
a)whether refusing a stay will render a successful appeal nugatory or will make it impossible or impractical to restore the position;
b)any hardship that would be suffered by the applicant and the respondent as a result of granting or refusing a stay;
c)the merits of the appeal;
d)whether there has been a delay in applying for the stay;
e)the bona fides of the applicant; and
f)the time it is expected for the appeal to be heard.
The authorities for the above propositions are Carlin (supra); Kelly (1981) FLC 91-007; and Molier and Van Wyk (No. 2) (1981) FLC 91-001.
In children’s cases, there are special circumstances. In the decision in Clemett (1981) FLC 91-013, the Full Court of the Family Court approved the principles enunciated by Watson SJ, subject to this qualification:
“Whilst we agree with the considerations as set out by Watson SJ in Carlin and Carlin(1977) FLC 90-310, we must stress that the most important of them is the one listed by him as the first: ‘the rights of the children’. This must outweigh any presumption which might apply in non-custodial matters that a party is entitled to ‘the fruits of the litigation’.
In determining whether a stay should be granted, the welfare of the children 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” (per Nygh J at 76175).
The Full Court has again stated this principle in CSN v JBN (1998) 24 Fam LR 174; FLC 92-833, where they quoted from the decision of Evatt CJ in Sanders (1976) 24 FLR 474 at 476:
“It is not desirable to disturb the status quo pending the determination of the matter unless there is something about that status quo that might be harmful to the child. I am not talking of cases where the judge orders a reinstatement of a position that has been disturbed by one of the parties recently. Where a judge makes an order that changes the custody and care of a child, it is particularly important that the appeal be heard as quickly as possible.”
Conclusions
I turn to the Applicant’s submission, which I summarised in paragraph 8 above. To submit that, until an appeal has been determined, the matter is still “at large” is a misconception of the process of hearing cases in the Federal Magistrates Court. There was an interim hearing on 10th January 2003, when I made an injunctive order. What then happened was that there was a final hearing on 4th and 5th March where evidence was taken and tested by cross-examination and a Family Report was considered. The writer of the Family Report was cross-examined by counsel for both parties. I considered the evidence and delivered a decision, where I made final orders. That would normally have been the end of the matter, had the applicant not decided to appeal. Unless a stay is granted, the orders remain in force unless and until the Full Court determines otherwise.
Whether or not the lodging of an appeal in other jurisdictions stays the order, that is not the case in proceedings under the Family Law Act or, indeed, in comparable State legislation governing civil proceedings concerning the welfare of children (eg, Children and Young Persons (Care and Protection) Act 1998 (NSW), s.91). The authorities consistently state that in proceedings concerning children, the best interest of the child is the paramount consideration.
It is not for the successful party in litigation to show why she should act in a way permitted to her by a final decision “in the hope that an appeal will not be upheld”. The appellant carries the onus of showing why the appeal should be upheld.
The time that would elapse before an appeal can be heard is a relevant consideration.
The mother has given evidence that she has made arrangements to take up her new position in W on 10th March. Until then, as a Local Government employee, she has taken long service leave. There is no evidence before me as to whether or not she has any more leave due to her, or whether she will be prejudiced in her employment if she does not commence at W on Monday. Long service leave has a monetary value, and expending that leave to await an appeal must represent a cost to the mother.
The mother may well be able to require her tenants to leave her house in G at a week’s notice, but she must still find accommodation in the meantime.
The time taken to hear the case and make the decision is relevant to the extent that relocation cases tend to have a degree of urgency about them. Whilst there is no formal process of expedition of hearings in the Federal Magistrates Court, I made the decision on 10th January when listing the matter for hearing in early March to give this matter priority at the expense of another, less urgent, matter. Indeed, the Family Report was produced in a shorter time than would normally be required, using a Regulation 8 Welfare Officer, because of the comparative urgency of the proceedings. Again, the production of the judgment on an ex tempore basis the day after the hearing concluded was necessitated by the comparative urgency of the proceedings. It is not always possible for matters to be decided in such a short period of time, but the role of the Federal Magistrates Court includes dealing with the shorter and less complex family law matters in a comparatively short time.
In this case, the refusal to grant a stay will not render a successful appeal nugatory or make it impossible or impractical to restore the position. If the appeal is successful, the mother will have to move back to G or the residence of the children will be changed from the mother to the father.
If the stay is granted, the mother may well find that her employment is in jeopardy or will suffer a financial loss. She has left her previous employment. If she decides to stay in W to preserve her employment, then the residence of the children will have to be changed to the father, which is undesirable pending an appeal.
I see no hardship to the applicant, other than that he must comply with the orders that I made yesterday. There would be a financial cost to the respondent if I were to grant the stay.
It is not up to me to decide on the merits of an appeal against my own decision. I am satisfied that I heard the matter in full and, after considering the facts and the law, decided that the children should remain in the care of their mother but that she should be permitted to take the children to reside in another town in New South Wales.
There has been no delay in applying for a stay. The application was made as soon as the decision was handed down.
I am informed by the applicant’s counsel that his instructions are to prosecute the appeal. The Notice of Appeal contains grounds that appear to be normal grounds of appeal and it is not for me to say whether they are justified or not.
The only information that I have about the time for the appeal to be heard is the respondent’s counsel’s estimate of two to three months, based on her experience. This accords with my own general knowledge, and is not an unduly lengthy time, in my respectful view.
The paramount consideration is the welfare of the children. The decision that is the subject of the appeal is that the children should remain living with their mother, and in that respect there is no change from the orders made by consent in the Family Court on 10th October 2000. If a stay were granted, the children would either go to live with their father pending the appeal, or, that the children would and their mother would remain living in G. The children would not be able to take up their enrolment at the W Public School, scheduled for Monday 10th March. Their mother will suffer some financial cost, and in due course her employment may well be in jeopardy, depending on how much leave she still has available to her.
It is not desirable that there should be a change in the parent with whom the children reside pending the hearing of the appeal. I am not satisfied that the applicant has shown any special ground for a stay. I am not satisfied that it is in the best interests of the children for the orders to be stayed.
The application for a stay is dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 10 March 2003
0
1
0