Gaffney and Gaffney
[2012] FMCAfam 390
•20 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GAFFNEY & GAFFNEY | [2012] FMCAfam 390 |
| FAMILY LAW – Application for stay pending appeal to Full Court – final parenting orders – general principles considered – stay refused. |
| Family Law Act 1975 (Cth), s.60CC |
| Aldridge v Keaton(Stay Appeal) (2009) FamCAFC 106 House v The King (1936) HCA 40 Gronow v Gronow (1979) HCA 63 The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (No.1) (1986) HCA 13 Alexander v Cambridge Credit Corporation (1985) 2NSWLR 685 Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited (1986) HCA 84 Clemett and Clemett (1981) FLC 91-013 JRN and KEN v IEG and BLG (1998) 72 ALJR 1329 K & B (2006) FamCA 848 CSN v JBN (1998) FamCA 176 Atkinson Appeal EA79 of 1997 EJK v TSL (2006) FamCA 806 |
| Applicant: | MR GAFFNEY |
| Respondent: | MS GAFFNEY |
| File Number: | NCC 1385 of 2011 |
| Judgment of: | Foster FM |
| Hearing date: | 20 April 2012 |
| Date of Last Submission: | 20 April 2012 |
| Delivered at: | Wollongong |
| Delivered on: | 20 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Graham |
| Solicitors for the Applicant: | Byrnes & Cox Lawyers |
| Counsel for the Respondent: | Mr Minehan |
| Solicitors for the Respondent: | MCW Lawyers |
ORDERS
The Applicant Father’s application for stay is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Gaffney & Gaffney is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT WOLLONGONG |
NCC 1385 of 2011
| MR GAFFNEY |
Applicant
And
| MS GAFFNEY |
Respondent
REASONS FOR JUDGMENT
These are proceedings in which the applicant appellant husband seeks an order for stay of the orders made by this Court on 23 March 2012, pursuant to the judgment reported at (2012) FMCAfam 258.
The application filed by the father was filed on 19 April 2012, that is, yesterday, and seeks the following orders in summary:
(1)That orders made on 23 March 2012 be stayed pending the hearing and determination of the applicant’s appeal; and
(2)That pending the hearing and determination of the applicant’s appeal, the following orders be made regarding the children.
Thereafter, the applicant father sets out orders that substantially provide for the children to remain in his care and for the mother to have time with the children pursuant to similar arrangements made for the father’s time in orders made on 23 March 2012.
In support of the stay application, the applicant father relies upon his affidavit filed on 19 April 2012.
The respondent mother was granted leave to file in Court today a response to the father’s application. In that response, she seeks that the father’s application in a case seeking orders for stay be dismissed.
In support of that order sought as to dismissal, the respondent mother relies upon her affidavit sworn on 20 April 2012 and filed with leave in Court today.
The Law
The law as to the general principles applicable to a stay pending appeal is substantially well settled. In Aldridge v Keaton (Stay Appeal) (2009) FamCAFC 106, the Full Court said commencing at paragraph 17:
“This is an appeal from a discretionary judgment. There are well established principles on the limits on interference by an appellate court with such a judgment. See House v The King (1936) HCA 40, Gronow v Gronow (1979) HCA 63 at paragraph 18.
The principles to be applied in determining an application for stay of orders, both in the general law and in respect of parenting proceedings are also well known. See The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (No 1) (1986) HCA 13, Alexander v Cambridge Credit Corporation (1985) 2NSWLR 685, Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited (1986) HCA 84, Clemett and Clemett (1981) FLC 91-013, JRN and KEN v IEG and BLG (1998) 72 ALJR 1329.
The Full Court the said:
The authorities stressed the discretionary nature of the application which should be determined on its merits. The principles relevant to this matter include the following:
1) The onus to establish a proper basis for the stay is on the applicant the stay. However, it is not necessary for the applicant to demonstrate any special or exceptional circumstances;
2) A person who has obtained a judgment is entitled to the benefit of that judgment;
3) A person who has obtained a judgment is entitled to presume the judgment is correct;
4) The mere filing of an appeal is insufficient to grant a stay;
5) The bona fides of the applicant;
6) A stay may be granted on terms that are fair to all parties. This may involve a court weighing the balance of convenience and the competing rights of the parties;
7) A weighing of the risk that an appeal may be rendered nugatory if a stay is not granted. This will be a substantial factor in determining whether it will be appropriate to grant a stay;
8) Some preliminary assessment of the strength of the proposed appeal whether the appellant has an arguable case;
9) The desirability of limiting the frequency of any change in the child’s living circumstances;
10) The period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and
11) The best interests of the child, the subject of the proceedings are a significant consideration.
In Aldridge v Keaton, the Full Court then observed that the Chief Federal Magistrate from whose decision the appeal was, carefully considered each of the mother’s grounds of appeal. He identified that the first and a number of other grounds related to the weight he had given to certain evidence. He, again, correctly, in our view, said the Full Court, set out an appeal Court’s reluctance to overturn a first instance decision on grounds which may only involve conflicting assessments of matters of weight.
The Full Court at [36] referred to K & B (2006) FamCA 848, saying this:
The Full Court dismissed a stay appeal where it found that the arrangements which existed for the particular child at the time of trial were not satisfactory and, therefore, the maintenance of the status quo, pending the determination of the substantive appeal, was not in the child’s best interests.
The Full Court, at paragraph 32, explained why, in a parenting appeal, the granting of a stay to maintain a status quo is not always appropriate or the best interests of a child may dictate refusal of a stay as appropriate. Their Honours said:
“The granting or refusal of a stay involves an exercise of discretion by a trial judge. While such discretion must be exercised judicially in cases involving children, we accept that from time to time circumstances in existence at the date of the orders or which occur from the date of the orders until the hearing of a stay application, may be very relevant matters to be considered in the exercise of discretion in determining whether or not to grant a stay.
The interests of the children would not be promoted by an inflexible requirement or presumption in every case to maintain the status quo prior to the making of orders the subject of the stay application and to ignore unsatisfactory arrangements at the time of the orders or significant events which have occurred after the making of those orders.”
During the course of argument, this Court was referred by counsel for the applicant father to the decision of CSN v JBN (1998) FamCA 176. The case involved a child who was aged approximately 18 months of age at the time of hearing. The child in May 1997 remained in Australia with the husband upon the wife wanting a trial separation and returning to India. The child remained with the husband in Australia and upon learning of the wife’s imminent return, he commenced proceedings for residence. In July 1997, the wife returned to Australia and cross-applied for residence. The trial judge concluded that the only way the child could have a proper relationship with the wife was to make a residence order in favour of the wife.
The trial judge, after referring to the decision of Clemett (1981) FLC 91-013 refused the husband’s application for stay of orders pending the appeal. In considering the circumstances in CSN & JBN, the Full Court at paragraph 4 set out part of the judgment of Nygh J. in Clemett saying this:
“In Clemett’s case, Nygh J. said at 76,175:
“In determining whether a stay should be granted, the welfare of the child is the paramount consideration. It is especially desirable for 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 in 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 of time.”
In considering the circumstances before the court in CSN v JBN, being circumstances where a child of tender years had been substantially in the uncriticised care of the father, the Full Court in CSN v JBN, in referring to the comments in Clemett’s case, took the view that it was appropriate for a stay to be ordered pending appeal.
But the determination on appeal in CSN v JBN depended particularly upon its underlying factual circumstances.
The Full Court in CSN v JBN referred to Atkinson (Appeal EA79 of 1997), a judgment delivered on 5 September 1997. In that decision Ellis J delivering judgment for the Court observed as follows:
“Moreover, in my view, the trial judge did not then consider the further criteria referred to in Clemett. Namely, whether the present circumstances of the children were satisfactory. That is, the circumstances which existed prior to the making of the parental order. Instead of embarking upon that consideration, it appears that the trial judge embarked upon a consideration of what harm, if any, would be done to the children if the stay were not granted. As a consequence, he did not consider, in my view, relevant factors. Namely, the circumstances of the children prior to his order and the desirability of limiting changes in residential arrangements with all that entails, particularly, in this case, changes in schooling.”
It is clear from the observations by the Full Court in CSN v JBN that the Court should particularly have regard to the circumstances that the trial Court found the children in at the time of the trial and any circumstances that may have transpired in the period since the date of trial to the date of the application for stay in considering that particular limb of the circumstances considered or set out by the Full Court in Clemett’s case.
In EJK v TSL (2006) FamCA 806, the Full Court had the opportunity of considering again the observations made by Nygh J, in Clemett in the context of the subsequent enactment of the Family Law Reform Act 1995.
The Full Court at [17] said this in relation to the principles espoused in Clemett:
“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 the granting or refusing of 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.”
The Court now turns to consider the factors referred to by the Full Court such as they are relevant in the decision of Aldridge & Keaton.
The bona fides of the appeal
The Court is satisfied that the appellant appeals as a consequence of his concern for the best interests of the children and his view, whether rightly held or otherwise, as to the correctness of the judgment in question. The appeal has clearly not been filed in an endeavour to simply obfuscate or delay the ultimate resolution of these proceedings. So the Court is comfortably satisfied that the appellant father is bona fide in pursuing his rights to appeal the decision in this matter.
Whether a stay should be granted on terms
The terms sought by the applicant father simply are a mirror reflection of the “time with” arrangements that were ordered by the Court in orders made on 23 March 2012 if the children were to be in the primary residence of the mother. Indeed, those arrangements were in fact part of the agreement between the parties at the time of trial in that the parties agreed that notwithstanding where the children primarily resided that the non-resident parent would have time with the children in terms of an agreed arrangement. The arrangement that the father seeks in terms of the mother’s time with the children in the event that his stay is granted reflects that arrangement agreed on by the parties and if the Court is mindful of granting the stay, clearly those arrangements should be in place pending determination of the appeal.
Whether there is a risk that the appeal may be rendered nugatory if a stay is not granted.
The Court is mindful of the observations of the Full Court in Aldridge & Keaton that this is a substantial fact in determining whether it would be appropriate to grant a stay.
The children, the subject of these proceedings, at the time of trial were aged 7 and nearly 5. They are not very young children and having regard to the history of the relationship between the parties both of the children have a substantial significant and meaningful relationship with each of the parents. The position is that the Court, as at the time of trial, formed the view that it was in the best interests of the children that they should reside primarily with the mother.
The father takes issue with that finding, but the circumstances are such that having regard to the appeal should there be a stay, it is likely that the children would remain in the care of the father for a prospective period up to date of resolution of the appeal which may be up to six months for a hearing on the evidence of the father set out in his affidavit together with an additional period for a consideration by the Full Court of its reasons and delivering judgment. Of course there is always the prospect of the matter being remitted for rehearing depending upon the success of the appeal.
The children have lived substantially in the care of both parents in this matter and in fact it was only until more recently in the latter part of their relationship that the children were not in a shared care arrangement as a consequence of the mother’s unilateral relocation to Sydney. Should the father’s appeal be successful it would be the circumstance that the children would return, of course depending upon his then circumstances, to reside with him in the [P] area. It is the Court’s view that there is no risk to the father’s appeal being rendered nugatory in the event that a stay is not granted.
The father’s argument in terms of his position as the prospective and best primary carer for the children can be and, no doubt, will be argued strongly before the appellate court and that court or on remittal another Federal Magistrate will make appropriate orders bearing in mind the circumstances that pertain at that time.
The Grounds of Appeal
The next factor is a preliminary assessment of the strengths of the appeal. This, of course, ultimately is a matter for the Full Court but the Court has before it a copy of the husband’s proposed notice of appeal and has assurances from counsel for the husband that the notice of appeal has been duly forwarded for filing with the Registry within the prescribed time.
The Court will turn to consider the grounds of appeal set out in the notice of appeal.
Ground 1: asserts that the Court erred in a failure to give any adequate reasons for decision for the assessment by the Court of the evidence of the parties and the expert witness and the weight afforded to the Court or by the Court to such evidence. It is difficult to determine the nature and extent with particularity as to what aspects of the Court’s judgment are impugned as the ground is generalised and difficult to consider.
However, the Court refers The House v The King (1936) 55 CLR 499 and the decision of the High Court in Gronow & Gronow (1979) 144 CLR 513 at 519 where Stephen J said:
“The constant emphasis of the cases is that before reversal an appellate court must be well-satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well-established that it is never enough that an appellate court left to itself would have arrived at a different conclusion. When no error of law or mistake of fact is present to arrive at a different conclusion which does not, of itself, justify reversal can be due to little else but a difference of view as to weight. It follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which may only involve conflicting assessments of the matters of weight.
This Court is unable to form a view by reason of the generality of Ground 1 as to the strength of that ground.
Ground 2: asserts that the Court at trial erred in making findings as to credit, suitability and character of the father and the father’s mother in the absence of evidence to justify such findings. Once again, this is a generalised ground of appeal and difficult to consider absent particulars within the notice of grounds of appeal. However, this Court observes that its findings were based on findings of fact upon considering the evidence before it and inferences that necessarily flow from those findings of fact.
Ground 3: asserts that the Court at trial failed to have or any proper regard to the provisions of section 60CC(2)(a) section 60CC(3)(b) and section 60CC(3)(d) and more specifically failed to give proper consideration to the likely affect on the children of any changes in their circumstances in the relocation from their current environment.
As to matters touching upon section 60CC(2)(a), this Court refers to its reasons for judgment at paragraphs 160 to 165. As to matters touching upon section 60CC(3)(b) this Court refers to its reasons for judgment, paragraphs 132 to 135. As to matters touching upon section 60CC(3)(d) this Court refers to its reasons for judgment at paragraphs 141 to 148.
Ground 4: asserts that this Court at trial erred in making findings in contradiction of relevant and uncontested evidence. This Court has no idea what this ground refers to. It being generalised and difficult to consider. The Court is unable to make any objective assessment of this ground of appeal.
Ground 5: asserts that this Court at trial erred in finding that the father’s parental capacity was problematic. In that regard, this Court refers to its reasons for judgment, its conclusions arising from the facts before the Court and inferences necessarily arising there from with particular reference to paragraphs 152 to 155 of the courts reasons for judgment.
Grounds 6, 7, 9 and 10: are all grounds which are couched in terms of an appeal against weight given to certain factors. In this regard, the Court refers to the matters set out in relation to Ground 1 and to the observations of the Court in Gronow.
Ground 8: asserts that this Court at trial erred in failing to properly consider the mother’s living arrangements in the absence of any or adequate evidence to enable him to do so. In this regard, this Court refers to the reasons for judgment, paragraphs 91 to 96 where the mother’s proposed living circumstances are set out with some particularity with those findings arising from the factual material before the Court at trial.
Ground 11: is that this Court at trial failed to follow the recommendations of the family report writer or in the alternative failed to give adequate reasons for his decision not to follow those recommendations. It is trite law to say that the Court is not obliged to follow the recommendations of the family report writer, but of course is obliged to make observations in that regard when not doing so.
In that regard, this Court refers to the reasons for judgment at paragraphs 97 to 114 where the family report writer, the family report and the family report writer’s evidence in the course of cross examination are set out in some detail. The court further refers to the court’s observations at paragraphs 175 to 177 of the reasons for judgment making it clear that the recommendations of the family report writer as to the primary residence of the children were not being followed. Those conclusions, of course, arise from the factual material before the Court set out in the judgment and the inferences that arise there from.
Ground 12: asserts that the conclusions reached by this court at trial were unreasonable and unjust. Once again, this is a generalised ground of appeal and very difficult to consider in the absence of any particulars provided, but having regard to the overarching principles espoused by the High Court in Gronow as referred to above, this Court is unable to identify any circumstances in which it can consider the weight or merit of such a ground of appeal.
Changes in the children’s circumstances
The next factor to be considered is the frequency of change in the children’s circumstances. The circumstances of the children prior to trial are set out in the reasons for judgment and, as referred to in the decisions noted above, it’s not the frequency of change during the history of the matter that is a matter of concern for the Court, but the frequency of change that may arise as a consequence of there being a stay or no stay granted in these proceedings.
That, of course, has to be dealt with in the context of the particular circumstances of the subject children, and that their best interests are, of course, the paramount consideration.
The circumstances are that the orders provide for the children to reside as and from now with the mother in Sydney.
The Court has particular regard to the observations made by the Full Court in Aldridge & Keaton in referring to the decision of K & B (2006) FamCA 848, where the Full Court observed in relation to the question of a stay:
“Whilst such discretion must be exercised judicially in cases involving children, we accept that from time to time the circumstances in existence at the date of the orders, or which occur from the date of orders until the hearing of the stay application, may be very relevant to matters to be considered in the exercise of discretion in determining whether or not to grant stay.”
It is clear from the reasons for judgment that this court considered that the best interests of the children were served by the children, in circumstances that existed at the time of the hearing residing in the primary care of their mother. That circumstance is the preliminary starting point for a consideration as to whether the Court should grant a stay.
It was and is the court’s view that the children are more appropriately in the care of their mother.
The father’s stay application would seek to have that circumstance reversed for an indeterminate period of time but probably not more than about 12 months if the matter was remitted for re-hearing and maybe a shorter period of six months or so, depending on whether the appeal court re-exercised its discretion based on the evidence at trial or any further evidence adduced by leave.
However, the Court also has regard to circumstances that have arisen since the orders were made and prior to the stay application being brought before the court.
In this regard, the Court has before it the affidavit evidence of the respondent mother. In that affidavit, she provides to the Court a copy of a letter from her solicitors to the husband’s solicitor dated 5 April 2012. That letter provides relevantly as follows:
We refer to your letter forwarded by email on 3 April 2012 a note you have instructions to appeal the decision of Foster FM. We do not believe that your client has any reasonable prospect of success in an appeal. We note you refer to a stay application. Our client will oppose any such application that might be made by your client. The orders made by Foster FM on 23 March 2012 provide that our client is permitted to relocate the residence of the children at the conclusion of school term 1 2012. School finishes today, and accordingly our client is entitled to relocate the children this afternoon. We note that order 4(c) refers to your client having the children during the school holidays at the ends of term 1 and 3. This is inconsistent with order 3 permitting our client to relocate the children at the end of the school term, and it is clear that it is intended to apply in the future rather than for this school holiday period. We note that our client was due to have the children on the weekend of 30 March to 1 April 2012. Your client refused to make the children available to her for that weekend. So that your client can spend some time with the children during this holiday period, out client is prepared to delay the relocation of the children until Saturday 14 April. So, effectively, the children spend the first part of the school holiday period with your client and the balance with our client.
It appears that no response was received by the mother’s solicitor until they received a facsimile transmission from the father’s solicitors dated 18 April 2012 – that being two days ago – enclosing a draft copy of the Notice of Appeal and copies of the present Application for Stay and affidavit of the father to be filed with the Court seeking the order for stay.
In the intervening period, there were, as the mother says in her affidavit, various conversations between herself and the father.
The mother confronted the father about him telling the children about their relocation to live with the mother, and, despite the father’s assurances that he was going to tell the children, by 14 April he had not done so. This date was the date the children were to commence residing with the mother.
On 14 April, in accordance with the mother’s proposed arrangements foreshadowed in her letter to the father’s solicitors of 5 April 2012, the mother collected the children from the father at the [H] changeover point, and the father provided the mother with the children’s schoolbags and scooters.
It appears from that circumstance there was some expectation in the mind of the father that the children would be thereafter attending school from the home of the mother.
In any event, in the course of driving to Sydney from [H] after changeover, the eldest child asserted that the father had simply said to her that they were going down to spend some time with the mother.
The father had not told the children they’re going to live with the mother, and it was the mother who on 14 April 2012, during the course of that trip that explained to the children, in very child-focussed terms, that it was now time for the children to live with her and to attend a new school.
On 16 April, the mother took the children to purchase new school uniforms for their new school, and she observes the children have been enrolled at [omitted] Primary School for the balance of the 2012 year and thereafter.
The mother has arranged a meeting with the children’s new school principal and their teachers on Monday 23 April, and she observes that the children are very excited to meet their new teachers and see their new classroom.
The mother has specifically arranged for a block period of leave from her employment from Monday 23 April for four weeks to be able to be with the children on each day as they settle in.
She asserts that it would not be in the children’s best interests for all of a sudden there to be another turnaround and for the children to be returned back to [P], having undertaken the preliminary process of relocation as referred to above.
Timing of the Appeal Hearing
The next factor is the prospective time in which the appeal can be determined.
The father, in his affidavit, asserts having been told by his solicitor that the appeal is likely to be dealt with within the next four to six months.
This Court has no information before it as to the present circumstances in relation to the Full Court of the Family Court of Australia’s listing procedures for the purposes of appeals generally.
At this stage, there has been no application by the father for expedition of the appeal, but on the basis, should the appeal be heard within, say, four to six months, and allowing time for reasons for judgment to be delivered, it would be this Court’s understanding that the appeal and reasons for judgment would be provided within a period of not more than nine months from today.
However the circumstance is that if the matter was remitted for retrial, bearing in mind the state of the Federal Magistrates Court lists in Newcastle, that that retrial, even though it would in all probability be expedited, would not be heard with judgment delivered within six months of the date of being remitted for rehearing by the Full Court.
The above circumstances would mean that there would be in the event of a stay being granted a very significant period in respect of which this court’s orders in relation to the children would be effectively on hold in circumstances where this Court was very comfortably satisfied at trial that the most appropriate circumstance for these children was for them to be residing with the mother.
Best interests of the children
The final consideration, and perhaps the most important consideration of all, is the best interests of the subject children.
The Court made a number of observations in its reasons for judgment as to the emotional attachment between the mother and the children, as to the youngest child professing that he was missing his mother to both the paternal grandmother and his kindergarten, and of course, the eldest child being in such distress at the circumstances of the family report interviews that she was unable to be interviewed.
It is clear, in this Court’s view, that it is in the best interests of the children, bearing in mind all of the matters referred to above, that they move into the primary care of their mother without delay, and be settled in a circumstance where she can provide to them the primary care foreshadowed in these Court’s orders.
Conclusion
Accordingly, and having regard to all of the considerations referred to above, the Court in its discretion, and of course, the decision to grant a stay is a discretionary one, with the onus on the applicant to demonstrate a proper basis for stay the court is not satisfied that the circumstances in this case warrant a stay being granted.
The Court orders that the applicant father’s application for stay is dismissed.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Foster FM
Date: 2 May 2012
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