Gahen and Gahen (No. 3)

[2013] FamCA 942

FAMILY COURT OF AUSTRALIA

GAHEN & GAHEN (NO. 3) [2013] FamCA 942

FAMILY LAW – CHILDREN – Stay application – mother has lodged appeal against substantive orders – injunction granted preventing the child to be in the presence of a third party until the appeal is discontinued or determined – application in relation to reduction of time spent with the father dismissed  

FAMILY LAW – PRACTICE AND PROCEDURE ­– Recusal application – application dismissed

Family Law Act 1975 (Cth)
Family Law Rules

Aldridge & Keaton(Stay Appeal) (2009) FamCAFC 106
Australian Coal and Shale Employees Federation v The Commonwealth (1956) 94 CLR 621

Ebner & Official Trustee in Bankruptcy (2000) 205 CLR 337
Federal Commissioner of Taxation v Myer Emporium Limited(No 1) (1986) 160 CLR 220
Jennings Constructions Limited v Burgundy Royale Investments Propriety Limited(No 1) (1986) 161 CLR 681
Johnson & Johnson (2000) 201 CLR 488
JRN & IEG (1998) 72 ALJR 1329
Sheldon & Weir(Stay Application) (2011) FamCAFC 5
Trahn& Long(No 2) (2008) FamCAFC 194

APPLICANT: Ms Gahen

RESPONDENT: Mr Gahen

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 1953 of 2010

DATE DELIVERED: 28 November 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Austin J

HEARING DATE: 28 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gould

SOLICITOR FOR THE APPLICANT: Nolan Commercial Lawyers

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: Powe & White Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: N/A

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid NSW

Orders

1. Pending discontinuance or determination of the Notice of Appeal filed on 18 October 2013:

   a.Order 12 made on 20 September 2013 is stayed and in lieu thereof;

   b.The father is restrained from causing or allowing the child to be in the physical presence of, or to communicate with, Mr R.

1. The Application in a Case filed on 25 November 2013 is otherwise dismissed.

2. No order as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gahen & Gahen (No. 3) 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 SYDNEY

FILE NUMBER: NCC 1953 of 2010

Ms Gahen

Applicant

And

Mr Gahen

Respondent

And

Independent Children’s Lawyer

EX-TEMPORE

REASONS FOR JUDGMENT

1. Substantive parenting proceedings between the parties were determined by orders made on 20 September 2013, at which time reasons for those orders were contemporaneously delivered. 

2. The mother filed a Notice of Appeal in relation to some of those orders on 18 October 2013. 

3. More recently, on 25 November 2013, the mother filed an Application in a Case seeking a stay of some of the substantive parenting orders and either the re-instatement of some antecedent interim orders or the imposition of some alternative interim orders, pending determination of her appeal. 

4. The gist of the mother’s concern is that she desires, firstly, that the child only spend supervised time with the father, and secondly, that the child has no interaction at all with a third person named Mr R. 

5. The trial was conducted on the basis that the father and Mr R had sexually abused the child, or alternatively, presented an unacceptable risk of sexual abuse to the child.

6. Findings were made on the balance of probabilities (at [113] of the judgment) that neither of them had sexually abused the child, and further, that neither posed an unacceptable risk of sexual abuse to the child.  As has been discussed in submissions, such findings manifested the binary nature of contested evidence. When a party sets out to prove a positive but fails to meet the standard of proof then the binary nature of factual findings means the negative is more probably correct.

7. The mother’s appeal is directed to that issue.  She variously complains that in determining the proceedings I:

   a)Disregarded relevant evidence;

   b)Deprived her of use of relevant evidence;

   c)Made findings that were not open on the evidence adduced; and

   d)Erred at law by ignoring the risks of inadvertently making incorrect findings. 

8. In support of her Application in her Case the mother relies on her affidavit filed on 25 November 2013, which effectively serves only to establish that she can afford to fund supervised interaction between the child and the father for two hours per week until the appeal is heard, but no more. 

9. I shall initially turn to deal with the mother’s application for my recusal from determination of her stay application.

10. Rule 22.11 of the Family Law Rules provides that the filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from, and in particular, rule 22.11(3) provides that 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 who made the order under appeal. 

11. Pursuant to application of that rule, the Application in a Case seeking a stay of my orders, which was filed only days ago on 25 November 2013, was expeditiously listed before me for determination.

12. However, Order 1 proposed in the Application in a Case provides:

    This application be heard by any justice of the Family Court of Australia other than Austin J.

13. Learned counsel appearing for the mother asked that that application be determined before determination of the other orders contained within the Application in a Case. 

14. Learned counsel referred to the authorities establishing the principles concerning recusal for apprehended bias.  The cardinal principle is well known (see Ebner & Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345; Johnson & Johnson (2000) 201 CLR 488 at 492):

    A judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.  That principle gives effect to the requirement that justice should be both done and seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle. 

15. It was contended by learned counsel for the mother that the application of that principle was triggered by a variety of excerpts from the judgment published by me on 20 September, 2013. 

16. The court’s attention was drawn successively to those excerpts, and it is my intention to deal with them individually:

    (a)At [46] I made reference to the mother’s “rank hypocrisy” in sustaining or pressing a certain argument in the substantive trial;

    (b)At [55] I referred to a reaction on the part of the mother being an “impulsive reaction”;

    (c)At [109] I referred to the mother’s “stubborn resistance”.  

17. There is no doubt about the making of those comments, because they appear clearly from the face of the record. 

18. The Court’s attention was also drawn to comments made concerning the child, at [86], [94], [100] and [103] of the judgment, but I reject counsel’s submission that those comments have any bearing upon the determination of the application of principle to which I have already adverted. 

19. The question to be considered is whether a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the mother’s stay application.  In my view, the comments I made about the mother in the substantive judgment are insufficient to invoke operation of that principle. 

20. The mother purports to hold a genuine belief in the risks of sexual harm to the child. The court has not questioned the honesty of that belief. Her credit has not been challenged. In fact, her evidence of historical facts has been accepted as correct. The only criticism levelled at the mother relates to the reasonableness of her belief. In such circumstances, I do not accept that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of this current application. 

21. I therefore turn to consider the substantive stay application brought by the mother.

22. Firstly, I should say something about the principles that govern the outcome of such an application. The discretion to stay the operation of orders should only be exercised where special circumstances exist which justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation pending the determination of any appeal. Such special circumstances justifying a stay will exist where it is necessary to prevent the appeal from being nugatory or for whatever other reason there is a real risk it will be not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed (see Federal Commissioner of Taxation v Myer Emporium Limited(No 1) (1986) 160 CLR 220 at 222-223). The Court should consider the prospects of the appeal and where the balance of convenience lies (see Jennings Constructions Limited v Burgundy Royale Investments Propriety Limited(No 1) (1986) 161 CLR 681 at 685).

23. Those common law principles apply equally to judgments delivered in this jurisdiction, including judgments pertaining to parenting orders (see Sheldon & Weir(Stay Application) (2011) FamCAFC 5 at [14]-[15]; Aldridge & Keaton(Stay Appeal) (2009) FamCAFC 106 at [18]; Trahn& Long(No 2) (2008) FamCAFC 194 at [38]).

24. The Court is entitled to assume that the decision which is the subject of the appeal is correct. Indeed, the Full Court must subsequently approach the appeal on the basis of a strong presumption that the decision is correct (see Australian Coal and Shale Employees Federation v The Commonwealth (1956) 94 CLR 621 at 627).

25. With particular relevance to the stay of parenting orders, the welfare of the child is now considered a significant, but not the paramount consideration.  Residential changes should desirably be limited as far as reasonably possible.  The Court should also consider whether the child’s present circumstances are satisfactory, the bona fides of the appeal, the apparent strength of the appeal, and the likely delay before the appeal is heard and determined. It may be appropriate to grant a stay, but only on certain terms. 

26. Learned counsel for the mother also drew the Court’s attention to the High Court authority of JRN & IEG (1998) 72 ALJR 1329, but conceded the principles flowing from that decision do not expand the considerations beyond those authorities to which I have already referred.

27. I consider the circumstances of this case in the context of those principles. 

28. At the outset, I should note that I have no doubts about the bona fides of the appeal. I am satisfied the mother genuinely disagrees with the findings at first instance and seeks to challenge the outcome by whatever means are legitimately available to her. 

29. I have placed on record an enquiry I have made about the likely delay until the mother’s appeal is heard. Absent any successful application for expedition, the appeal will probably not be heard until the end of 2014, and presumably with the attendant delay in the publication of the Full Court’s judgment, whatever orders apply from this point will probably prevail for not less than 12 months and not more than 18 months.

30. It was contended on behalf of the mother that a refusal of her stay application will render her appeal nugatory. I reject that submission. If the Court’s findings about the abuse allegations concerning the father are wrong and the mother’s fears are vindicated, undoubtedly the child will be exposed to the prospect of further abuse if the existing substantive orders are implemented. However, that danger will be averted upon determination of the appeal, which will result in either perpetuation of the orders I made, or alternatively, the discharge of them in accordance with the mother’s wish. So the appeal will not be rendered nugatory. Refusal of the stay would simply allow the risk perceived by the mother to endure for longer.

31. The mother properly conceded the hardship that would be occasioned to the child and the father by the grant of her stay application. Their meaningful relationship would necessarily be impaired by a return to a closely confined arrangement of professionally supervised interaction for two hours per week.  That arrangement was found to be wholly unsatisfactory for them and was the very reason, in the absence of any finding of unacceptable risk, for the orders which immediately dispensed with supervision and instituted an incrementally expanding regime of interaction between them.

32. It is acknowledged that the best interests of the child are a significant consideration. Clearly, the child’s best interests are not served by further exposure to risk of sexual abuse, but the mother’s belief in the existence of that risk was not vindicated at trial. The fervour of her belief does not translate to greater virulence of the risk. The judgment at first instance is presumed to be correct and some, but not all, of the grounds of appeal pertain to matters of discretion. Traditionally, grounds of appeal of that ilk are difficult to sustain. Conversely, the child’s best interests will not be served if, as is presently found, there is no unacceptable risk of abuse to him and his relationship with the father is stunted by the type of interaction envisaged by the mother.

33. Following separation in September 2009 and from about mid 2010, the child enjoyed an expansive program of interaction with the father. In March 2011, the parties agreed upon orders that provided for the parties to share parental responsibility for the child, for the child to live with the mother, and for the child to spend time with the father each alternate weekend and on some specified special occasions. When the sexual abuse allegations were made in November 2012 the mother severed the child’s relationship with the father.  Their relationship was resurrected in February 2013 by interim orders which made provision for the child to spend supervised time with the father at a nominated contact centre for two hours each Saturday. Those orders prevailed until the final orders were made by me on 20 September 2013.

34. Since then the child has presumably visited the father at his home without supervision each Saturday between 9.00 am and 5.00 pm. Certainly, no evidence was adduced to suggest the orders I made have not been successfully implemented. Reversion to a program of supervision for only two hours per week as the mother proposes, especially if it is at a contact centre, would likely be disturbing and confusing for the child. That would be particularly so if there is another change in arrangements following determination of the appeal, which might result in either re-instatement of the Orders made on 20 September 2013 or perhaps even less frequent supervised time with the father if the mother successfully convinces the Full Court of the existence of an unacceptable risk of abuse.

35. Such vacillation in visiting arrangements with the father would not be conducive to promotion of the child’s best interests.

36. The child’s interaction with the father can, however, be differentiated from his interaction with Mr R. The same considerations do not apply to the relationship between the child and Mr R. The resumption of that relationship can successfully be suspended without undue harm. As pointed out by the Independent Children’s Lawyer, the child maintained one allegation against Mr R to police officers during his police interview, but withdrew any allegations against the father.

37. Having regard to those considerations, in my view, it is appropriate to sustain the mother’s stay application in only one respect, and I therefore make orders as follows.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 28 November 2013.

Associate: 

Date:  3 December 2013