Garrety and Steyn

[2019] FamCA 238

FAMILY COURT OF AUSTRALIA

GARRETY & STEYN [2019] FamCA 238

FAMILY LAW – JUDGMENTS – Stay – where final parenting orders and judgment was delivered following a defended hearing – where a change of residence was ordered – where the children are living with the mother – where the father has filed a Notice of Appeal in relation to the final orders and seeks a stay of those orders pending the final outcome of the appeal – where the stay application was opposed by the mother and Independent Children’s Lawyer - where the stay application is dismissed – where the stay would deprive the mother of the benefit of the judgment – where the father is not seeking a stay simpliciter but is seeking orders that are different to the previous orders in place or those sought at the final hearing – where there is no evidence about how this new proposal would affect the welfare of the children –where the best interests of the children and their welfare is given considerable weight – where the children would suffer significant stress and confusion if their residence was again changed – where the mother has been managing a major adjustment for the children and they are settling – where the final orders were put in place in circumstances where the relationship between the mother and children was at risk and the mother was powerless to overcome the father’s attitude and his compliance with the orders – where if the stay application was granted hardship would fall most heavily upon the mother and children – where the impact would be adverse if the stay application was successful and the appeal was unsuccessful – where it would be cruel to remove the children from the mother where they have been told they are permanently living now – where if the stay and appeal were both successful then it would remove any tentative reconciliation between the mother and children.

The Family Law Act 1975 (Cth)

JRN & KEN v IEG & BLG (1998) 72 ALJR 1329; [1998] HCATrans 263
Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Trahn & Long (No. 2) [2008] FamCAFC 194
In the Marriage of Clemett [1981] FLC 91-013
Sheldon & Weir (Stay Application) [2011] FamCAFC 5
In the Marriage of Carlin (1977) 29 FLR 497; [1977] FamCA 92

APPLICANT: Mr Garrety

RESPONDENT: Ms Steyn

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Newcastle Family Law

FILE NUMBER: NCC 802 of 2013

DATE DELIVERED: 17 April 2019

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 15 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sansom SC

SOLICITOR FOR THE APPLICANT: Gillard Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Duane

SOLICITOR FOR THE RESPONDENT: Rankin Ellison Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms O'Rourke, Advocate

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Newcastle Family Law

Orders

1. The application filed 3 April 2019 for a stay of orders dated 27 March 2019 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 802 of 2013

Mr Garrety

Applicant

And

Ms Steyn

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Application in a Case

Stay of orders pending Appeal

1. By an application filed on 3 April 2019 the father Mr Garrety applies for a stay of all orders made by this Court on 27 March 2019 (“the 2019 orders”).

2. An appeal against the 2019 orders was filed by the father on the same day.

3. The 2019 orders relate to final parenting arrangements for two children, girls now aged nine and eight years. The orders were made following a trial lasting seven days, conducted in August 2018 and January 2019.

4. The 2019 orders provided for a change of residence from the father to the mother commencing on the day that judgment was delivered.[1]  Orders provided thereafter for a gradual restoration of time and communication with the father after a 10 week period of no contact with him at all. Following that period there are two eight week periods of time in contact centres in both Sydney and E Town. Holiday time is due to commence after the conclusion of Term 3 in 2019, approximately six months from date of orders.

   [1] Family Court of Australia order dated 27/03/2019, Order 2

Parenting orders sought pending Appeal

1. The orders sought by the father[2] in addition to the application for a stay,[3] propose that pending the outcome of the Appeal the children return to live with the father and spend holiday time with the mother.

   [2] Application in a Case filed on 03/04/2019 by the Applicant father, Order 3 - 6

   [3] Application in a Case filed on 03/04/2019 by the Applicant father, Order 2

2. These proposed parenting orders require some analysis. The proposal is for half of all term and Christmas school holidays pending the outcome of the appeal, with changeover at a contact centre.

3. There is no reference to allocation of parental responsibility so that s 61C of the Family Law Act 1975 (Cth) (“the Act”) would apply. Each party would have parental responsibility.

4. These orders differ from those proposed by the father at trial, in the event that the children remained living with him. The orders proposed then were for four occasions of time for the mother, supervised, per annum. This pattern is sometimes described as minimum or identity contact.

5. The orders proposed pending the outcome of the appeal, self-evidently, offer substantially more time with the mother for the children than the orders proposed at trial.

6. In the delicate circumstances of this case, there is no basis for coming to a conclusion as to how this new proposal would affect the welfare of the children. That is not a criticism of the father. The orders may be put forward in a spirit of compromise. They may be strategic to these proceedings. I am not in a position to come to any conclusion about that.

7. What has been found by me to be the case is that the attitude of the father and his wife to the children spending time with the mother was negative and not conducive to relationships between the children and the mother being sustained. Some, but by no means all references, are paragraphs 53 to 64, 108, 176 and 203 of the reasons for Judgment.[4]

   [4] Judgment dated 27/03/2019 paras 53-64, 108, 176 and 203

Opposition to a Stay

1. The application for a stay was opposed by the mother who responded with an application for dismissal.

2. The Independent Children’s Lawyer also opposed the stay. His opposition was based on the adverse impact on the children of a further change in their arrangements.

Hearing of Application for Stay - 15 April 2019

1. The documents relied on were as follows:

   The Applicant father

   (a)Application in a Case filed 3/04/2019;

   (b)Affidavit of the father Mr Garrety filed 3/04/2019;

   (c)Interim Outline of Case document for the father filed 15/04/2019;

   (d)Notice of Appeal filed 3/04/2019;

   The Respondent mother

   (e)Response to an Application in a Case filed 15/04/2019;

   (f)Affidavit of the mother Ms Steyn filed 15/04/2019;

   (g)Outline of Submissions for the Respondent mother filed in Court 15/04/2019;

   Other

   (h)Orders and Reasons for Judgment dated 27/03/2019.

The matter proceeded by way of oral expansion of written submissions on behalf of each parent and brief oral submissions on behalf of the ICL. The Law

1. The filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from.[5] 

   [5]Family Law Rules2004 (Cth), Rule 22.11 (1)

2. The principles which govern the granting of a stay involve an exercise of judicial discretion.

3. The principles generally relevant to the granting of a stay are articulated in the 2009 decision of Aldridge & Keaton (Stay Appeal)[6] and the 2008 decision Trahn & Long (No. 2)[7] and others. They represent a drawing together of considerations which have emerged from decisions of the Full Court commencing with Carlin & Carlin in 1977[8] and Clemett & Clemett in 1981.[9]

   [6]Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

   [7]Trahn & Long (No. 2) [2008] FamCAFC 194

   [8]In the Marriage of Carlin (1977) 29 FLR 497

   [9]In the Marriage of Clemett [1981] FLC 91-013

4. Amendments to the Family Law Act in 1995 and subsequent amendments, affected the paramountcy principle with respect to the granting of a stay in children’s matters. The order granting a stay is not a parenting order so the requirement that a child’s interest be the paramount consideration does not apply. However that does not detract from the special consideration which has been relevant to stays in children’s matters from the outset of decision making in this Court.[10]

   [10]In the Marriage of Carlin (1977) 29 FLR 497

5. The principle is captured in the decision of the High Court in JRN & KEN v IEG & BLG (1998) 72 ALJR 1329, where His Honour Justice Kirby in his discussion of the circumstances when there could be and should be, departure from the principles which govern the determination of stays, spoke of deviation from the usual rules in certain circumstances and gave as examples:[11]

   i.The operation of the criminal law;

   ii.With regards to laws designed to protect the public; and

   iii.In the opinion of His Honour “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”.

   [11]JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 [16]

6. There are no mandatory considerations but there are conventional considerations arising from authority as outlined above.

7. They are as follows and several of those factors apply here :

   (a)The onus to establish a proper basis for a stay is on the applicant without the necessity for the applicant to demonstrate any special or exceptional circumstances;

   (b)A person who has obtained a judgment is entitled to the benefit, sometimes referred to as the “fruits” of that judgment;

   (c)A person who has obtained a judgment is entitled to presume the judgment is correct;

   (d)Bona fides. The applicant for the stay must be making an application in good faith;

   (e)A stay may be granted on terms that are fair to all parties which may involve a Court weighing the balance of convenience and the competing rights of the parties;

   (f)Whether there is a risk that an appeal could be rendered nugatory if a stay was granted;

   (g)Some preliminary assessment of the strength of the proposed appeal and whether the appellant has an arguable case;

   (h)The desirability of limiting the frequency of any change in the child’s living arrangements;

   (i)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;

   (j)The best interests of the child must be considered although they are not paramount.[12]

   (k)Hardship resulting from a stay being granted or refused should be considered.

   [12]Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106; Trahn & Long (No. 2) 2008 FamCAFC 194

Bona fides

1. The mother conceded that the appeal had been brought in good faith and expeditiously. There is an Application for Expedition listed on 18 April 2019.

Is there a proper basis for a Stay?

1. The applicant seeks a stay of all of the 2019 orders pending the outcome of the appeal.

2. If the stay was granted, without more, the parenting arrangements would revert to the 2014 orders. These orders were made after four days of trial in late 2014. They were current, if not fully operative, until discharged by the 2019 orders.

3. The father does not seek to revert to the 2014 orders. That is consistent with the position of the father (and the mother) at trial that the orders were unsatisfactory and unworkable.

4. The father does not put forward the orders sought by him at trial in 2018/19.

5. The father proposes that there be substantial holiday time for the children with the mother pending the outcome of the appeal, and, in the event that the appeal is successful, the same orders in an expanded form together with residence and sole parental responsibility for himself.[13]

   [13] Notice of Appeal filed 03/04/2019 by Applicant father, Annexure B

6. The latter orders, sought in the appeal, appear to largely, but not entirely, mirror the orders made for the benefit of the mother by the 2019 orders.

7. I must conclude that the father does not want a stay simpliciter. He wants to try new orders.

8. Balanced against the harm of disrupting a structured set of orders directed to  restoring the relationship of the children with the mother, the  untested proposals for different orders are not a proper basis for a stay  pending appeal.

How to consider the best interests of the children?

1. The best interests of the children, their welfare, is a matter to which I give considerable weight in the circumstances.

2. The children were brought into the Newcastle Registry of this Court early on the day judgment was delivered and remained in the area of the Family Consultants.

3. The solicitor advocate for the Independent Children’s Lawyer confirmed that the children had been present and that the orders had been explained to them. The children ultimately left with the mother. The mother describes the events of that day in this way:[14]

   [2]On 27 March 2019, I met the children on Level 2 of the Court. I understand the orders were explained to the children by the Independent Children’s Lawyer and a Family Consultant before I arrived. When I saw the children they were crying hysterically and protesting loudly that they did not want to go with me and that I was not their mother. [B] kept repeating, “I want to go home with Mummy and Daddy, she is not our Mummy.”  The Family Consultant was talking to the children. [B] kept looking at me and repeating “You are not my mother.”  [C] was saying similar things and screaming loudly however she appeared less distressed.

   [3]This situation went on for about 2 hours. My mother was present during this ordeal. The children would not speak to me or my mother. My mother and I both tried to comfort [B] at times. She pushed us away.

   [4]Following the advice of counselling staff, we separated the children. We managed to get [C] into the car in the Court car park and we took her to the beach for some lunch. [B] remained with the counselling staff. Once [C] was away from [B], [C] stopped protesting and appeared calm. [C] ate lunch with my mother and I. She cuddled me and asked me several times, “Do we live forever with you now?”  I said, “Yes”.

   [5]We returned to the Court just after 1 pm. The counselling staff had been with [B] during this time. [B] had calmed down. She agreed she would go with my mother and I. [B] also said she was hungry and thirsty. We took [B] for some lunch and then headed home. [B] spoke civilly to my mother and I  in the car trip home.

   [14] Affidavit of the mother filed 15/04/2019, pars 2-5

4. The orders provided[15] for the children to have the nature and consequences of the orders explained to them and any questions they had answered. The orders provided for the children to live with the mother and to spend time with the father after 10 weeks had elapsed. That would certainly have been explained to the children.

   [15] Family Court of Australia order dated 27/03/2019, Order 28

5. The mother herself has answered “yes” to C’s question “Do we live forever with you now?”[16]

   [16] Affidavit of the mother filed 15/04/2019, para 4

6. Senior Counsel for the applicant father made a submission as follows; that because the children had only been out of their father’s care for three weeks, having previously been in his care for five years prior, it would be appropriate for the Court to treat those three weeks as equivalent to a holiday period.

7. The submission continued that logically therefore the children could and should be returned to live with the father based on the enduring principle arising from Clemett[17] and cases following, that the frequency of any change in custodial arrangements should be limited as much as possible.

   [17]In the Marriage of Clemett [1981] FLC 91-013

8. I reject that submission.

9. That could have been persuasive if the children had often together spent three weeks with their mother enjoying a holiday and this was another one of those times.

10. The three week period that the children have spent with the mother, although it may be equivalent in time to a half Christmas school holiday period, is in no way akin to a holiday period.

11. The children were together removed out of their father’s care and placed with their mother to enable them, despite anticipated hostile resistance to re-engage with her as their mother.

12. In the past when one or both of the children refused to spend time with the mother and vehemently protested, one or both were collected by the father by arrangement between the parties. On occasions the younger child went with her mother alone.

13. This time the children went with the mother and have stayed there with her in her home. The children reacted once in the mother’s home as follows according to the untested evidence of the mother:[18]

    [6]During the days after the children came home with me, [B] was extremely destructive. She broke items in the home and in their room. [C] was better but she still had some severe meltdowns. She said “Nobody loves me. I wish I was dead”. [C] also said, “I hate myself”.

    [7]The first days were very tough for all of us but from there things started to improve. The children became willing to co-operate with the routine and my instructions whereas previously they would simply refuse to listen to me.

    [8]The children also started to warm to me. [C] is now overtly affectionate with me and does not seem to mind showing me affection in the presence of [B]. [C] has recently started referring to me as “Mama”. [C] is still experiencing some serious meltdowns where she expresses some very hateful sentiments however she is also telling me at least once a day, “I love you Mama”. [B] has started allowing me to show her affection which she has not done for several years. [B] is still calling me “VV”.

    [9]Both children now ask me to lie with them each night until they fall asleep. Every night, when the children are in bed, I say words to the effect, “Daddy loves you. Mummy loves you. We both love you very much and are proud of you”.

    [10]My mother has been with us for the majority of the time since we returned and has supported me and the girls practically and emotionally.

    [11]Since [B] and [C] return (sic), the child J has been spending more time with his father to allow an easier adjustment for the girls. They have spent some time together. Initially the girls made some hurtful comments to [J] such as “You are a loser and are not our brother”. This upset [J]. I have spoken to [J] about techniques and strategies to respond. I have also established strict boundaries to give the children their own space. I have observed some very happy interactions between the [B], [C] and [J] such as when we went to Luna Park and indoor trampolining.

    [18] Affidavit of the mother filed 15/04/2019, pars 6-11

14. To his credit the father, through his counsel, conceded that he drew some comfort from the affidavit of the mother that matters were progressing for the children.

1. However it is clear that the children reacted in the negative way that was predicted in the reasons and are only just beginning to reveal affection for their mother and to settle in their new environment.[19]  They have started at a new school[20] and are reported to be enjoying it. The mother has arranged for the children to speak to the school counsellor in Term 2. The children have been enrolled for drama classes in Term 2 and the older child B is described as “extremely excited about this”.[21]

   [19] Judgment dated 27/03/2019 pars 249 & 250

   [20] Affidavit of the mother filed 15/04/2019, par 14

   [21] Affidavit of the mother filed 15/04/2019, par 18

2. Four days after the delivery of judgment, the mother attended on her general practitioner and obtained a referral for counselling for herself, the subject children and the mother’s older child J. The mother has kept the father advised of the counselling she has arranged.[22]

   [22] Affidavit of the mother filed 15/04/2019, par 13

3. The evidence suggests that the mother has been managing a major adjustment for the children and that they are settling.

4. There is now a school holiday period and plans have been made for it. It was anticipated in the reasons that the children would benefit from a more relaxed holiday setting with the mother and perhaps the maternal grandparents.[23]

   [23] Judgment dated 27/03/2019 par 259

5. The attempt to draw an analogy between what has happened in the past three weeks, with a holiday for the children, in my view, fails completely.

Could refusing the stay render the appeal nugatory that is to say worthless or meaningless?

1. Senior Counsel for the applicant also contended that there was a real risk of the appeal being rendered nugatory if a stay was not granted.

2. The basis for this submission was a contention that if the father was successful with his appeal the matter would likely be sent back for further trial. Given that the grounds of appeal relate to sufficiency of reasons I agree that would likely be the case.

3. The submission continued on this basis that there would be a period of time which inevitably passed (greater in the absence of expedition if that were not granted) and such residence might not be “reversed” because the children would have settled in to the new school with friends and activities.

4. I reject this submission. The submission appeared to be that there was a high risk that the children would be too settled in the care of the mother to be able to be moved. The possibility of that outcome does not render the appeal nugatory.

5. In the event of a successful appeal leading to a fresh trial, the matter would be dealt with on its facts and circumstances at the time of trial.

6. If the children were settled and doing well in the care of the mother, and orders were being complied with, that would likely be a proper basis for maintaining residence with her. If the situation was not that way, if the children were unsettled, emotionally disturbed, not seeing their father according to the orders, that would likely be a proper basis for a further change of residence.

7. In any event, the most intense phase of repairing and restoring relationships between the children and the mother will be completed at the conclusion of 10 weeks from date of the 2019 orders, followed by time for the children with the father in the controlled setting of a contact centre.

Does the father have an arguable case?

1. Counsel’s next submission was that there was an arguable case raised in the Notice of Appeal.

2. There are seven grounds of appeal most of which relate to the sufficiency or adequacy of reasons.

3. Counsel for the mother did not concede there was an arguable case. I accept the submission of counsel for the mother to the extent that raising issues which “should have been determined” in the grounds of appeal is not a proper basis for argument.[24]  Ground 5 did not identify and articulate the finding which was under challenge and identify the basis for error.[25]

   [24] Notice of Appeal filed 03/04/2019 by Applicant father, Ground 3-4

   [25] Notice of Appeal filed 03/04/2019 by Applicant father, Ground 5

4. There is a mandatory statutory pathway for considerations in children’s matters and it is not asserted in the appeal that those factors were overlooked.

5. However I am not prepared to describe the appeal as entirely without merit. There are arguments to raise although the grounds are not particularly strong.  

Does the mother lose the benefit of the judgment?

1. For the mother, it was argued that a stay would deprive the mother of the benefit of the judgment. There is in my view force in that submission.

2. If a stay was granted such that the children promptly returned to live with their father, and the appeal was subsequently unsuccessful, the children would revert to residence with their mother pursuant to the orders. If that happened it could hardly be the case that a second period of 10 weeks, or the balance of the 10 week period could be undertaken in the circumstances.

3. The impact on the children must be adverse.

4. Likewise if the stay was granted and the appeal was subsequently successful it is most unlikely that any tentative reconciliation achieved between the children with the mother could survive that period of time.

5. The opportunity afforded by the orders for the mother to have the children live with her and to enjoy that new situation would almost certainly be lost.

6. The orders were put in place where relationships between the mother and children were at risk and the mother was powerless legally to overcome the impact of the father’s attitude to her and compliance with the orders.

Is there hardship for a party?

1. Hardship in my view would arise from the granting of the stay for the mother and the children, and perhaps also the father in such a circumstance.  

2. I raised this issue with counsel for the father who did not accept to any extent that there would be hardship for the parents and children is such a circumstance. Yet it must be the case. The children are three weeks in to a period of 10 weeks of undisturbed time with the mother. They appear to have made progress and the older subject child has begun to show affection for the mother.

3. It would be a cruel outcome to remove them from the mother when they have been told they were living with her permanently now, return them to living with their father, then in the event of the appeal being unsuccessful, moving them back to the mother and starting again.

4. If the appeal was successful then their circumstances have at least some potential to be improved by the time the outcome of a fresh trial was known.

5. Senior Counsel for the father submitted that the Independent Children’s Lawyer could explain to the children what was happening and why. It is most unlikely, in my view, that the children would trust the Independent Children’s Lawyer, or readily believe whatever was said by the Independent Children’s Lawyer, or either parent, if they were moved back and forth between the households in the way outlined above.

6. If the appeal was successful the hardship for the mother would be that pending the inevitably further trial, the children would be living with the father with all the possibility of dismissive hostility towards the mother continuing from the father and his wife.

7. To grant the stay causes the father less hardship in circumstances where the children would be returning to his household for holiday periods with himself, his wife and the other two children in the household within six months from date of orders.

8. I consider that hardship falls most heavily on the mother and children if the stay is granted. I give considerable weight to the distress and confusion likely to be caused to the children by another abrupt removal with at least the possibility of a removal back, especially as such a move would be inconsistent with what they have been told is now happening.

Conclusion

1. I conclude for these reasons that the factors involving hardship, the loss by the mother of the benefit of the judgment, the best interests of the children and the uncertain basis of the stay together lead me to the conclusion that a stay should not be granted.

2. I decline to grant a stay.

3. An order for dismissal is made accordingly.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 17 April 2019

Associate: 

Date:  17 April 2019