Gleeson and Leighton

[2007] FamCA 105

FAMILY COURT OF AUSTRALIA

GLEESON & LEIGHTON [2007] FamCA 105

FAMILY LAW - CHILDREN - Parenting orders - Stay application pending appeal

APPLICANT: Mr Gleeson

RESPONDENT: Ms Leighton

INDEPENDENT CHILDREN’S LAWYER: Ms Shea

FILE NUMBER: SYF 6845 of 2001

DATE DELIVERED: 13 February 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 13 February 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE RESPONDENT: Litigant in person

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms Falloon

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Legal Aid Commission of NSW

Orders

1. That by consent the orders made on 16 January 2007 be varied as follows:-

   1.1.Order 4.8 be varied by adding the words “in Sydney” after the word “weekends” in the second line.

   1.2.Additional orders 4.10A.1 and 4.10A.2 be added in the following terms:

   “4.10A.1At the father’s option, from after school on Friday evening until 7.30pm on Sunday during school term in the [W] district for one half of the available weekends which are not otherwise accounted for by any order except order 4.10;

   4.10A.2The weekends the father nominates pursuant to order 4.10 will be included as part of his one half of available weekends in [W] pursuant to order 4.10A.1”.

   1.3.Order 4.9.3 be amended to delete “6pm” in the third line and insert “7.30pm”.

   1.4.Order 4.14 be varied by changing the number from 4.14 to 4.14.1 and adding after the word “contact” in the first line the words “in Sydney pursuant to order 4.8”.

   1.5.By inserting a new order 4.12.2 in the following terms:

   4.12.2 In relation to weekend contact in [W], the father provide the mother in writing notification of the dates the children will spend time with him 14 clear days before the Friday upon which that time shall commence and the father will not give written notification of dates or be entitled to have time with the children on more than three consecutive weekends and nominated weekends shall not include Mother’s Day or the Mother’s birthday.

2. That the father’s application filed 24 January 2007 for a stay of orders made 16 January 2007, be dismissed.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 6845  of 2001

Mr Gleeson

Applicant

And

Ms Leighton

Respondent

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

1. This application is about whether or not a stay should be granted of final parenting orders that were made on 16 January 2007. 

2. By order 3 made on that day, the children, J and H, were to live with their mother from two days before the commencement of their school year in 2007. 

3. After I had made orders and published reasons on 16 January 2007 the father made an oral application for leave to make an application to stay the orders. 

4. I indicated at that time that I was not prepared to grant that leave in circumstances where the father had not yet read the reasons for judgment, had not formulated any grounds for appeal and had not filed a notice of appeal.

5. In those circumstances I indicated to the father that the application for the stay should be filed at the same time as he filed his notice of appeal and should be supported by an affidavit in support of that application.

6. I indicated to the father that any application for a stay that he filed could be listed before me for hearing on Thursday 25 January 2007. 

7. At that time the children were with their mother in South Australia on holidays.  Order 2.3 made on 16 January 2007 was in the following terms:-

   “The mother is permitted to enrol the children at [R College], South Australia, commencing in Term 1 in 2007.”

8. I made it clear to the father on 16 January that he should provide adequate notice to the mother and the Independent Children's Lawyer as to the basis upon which he was making a stay application.

9. The following exchange took place between the father and myself on 16 January:-

HH	Well you have got legal advice but you should make sure that you give as much information about what you are doing to the legal representatives for the mother and the Independent Children's Lawyer because they have to be in a position to say what they want to say about your stay application.  So the basis of the stay application should be communicated to them.
[The father]	By …
HH	So they are in a position before, obviously as much time as you can before next Thursday so they are in a position next Thursday to put what they want to say about your arguments in relation to a stay application.

1. At around 4.30pm on Wednesday 24 January 2007 the father filed five documents.  They were:-

   10.1.An initiating application seeking an order for a stay and an order that the children be returned to Sydney.

   10.2.An affidavit sworn by the father on 24 January 2007.

   10.3.Case outline for stay application.

   10.4.Submissions in respect of the case for stay of execution.

   10.5.Notice of appeal.

2. The mother on 19 January 2007 had faxed to the Registry a notice of address for service whereby she gave addresses in South Australia as her address for service.

3. On 25 January 2007 Mr O sought leave to appear on behalf of the mother in respect of the proceedings before me on that day.

4. He made an application for an adjournment of the proceedings based on the lack of notice of the basis upon which the father sought a stay, and the fact that the mother had been given no time at all by the father to consider the documents that he had filed and to file any material in response and consider any submissions that she might wish to make. 

5. The application for the adjournment was supported by the Independent Children's Lawyer.

6. For reasons which I gave on 25 January 2007 the mother’s application for an adjournment was successful.

7. The father on 25 January made an oral application that a stay be granted pending the determination of his application for stay.  I declined that oral application.  He made a further application that an injunctive order be made restraining the mother from starting the children at R College on Monday 29 January.  Again I declined that application.

8. I made an order that the mother file and serve any material upon which she relies by 3pm on Friday 9 February.  I adjourned the matter to Tuesday 13 February 2007.

9. The mother has filed an affidavit which she swore on 8 February 2007.

10. I gave the father leave this morning to rely on parts of an affidavit which he filed without leave and which he swore on 8 February 2007.  The parts of the affidavit that I allowed were the second, third and fourth sentences of paragraph 19, the whole of paragraph 21 and the opening words of paragraph 22 down to the word “household”, and all of the response that he gave to the affidavit of the mother that was sworn by her on 8 February, which starts towards the bottom of page 4 and goes to the end of his affidavit. 

11. The mother, in her affidavit, deposes to the fact that the boys are happy and settled in her care.  They have started school at R College, South Australia on Monday 29 January 2007.  They have chosen their elective subjects and sports.  They have begun study and training.  Both have been accepted to play cricket for the school.  Uniforms, text books and school requirements have been purchased.  They have met all their subject teachers, head teacher and house master. 

12. There is evidence before me that the boys have settled into their South Australian house to some degree, although, it seems common ground that the entirety of their personal effects have not yet gone from Sydney to South Australia. 

13. Friends in Sydney have been told by the boys that they will be staying in South Australia.

14. I have some conflicting evidence before me as to what the maid’s cottage is being used for at the current time.  The evidence by the father as to what J and H have said to him conflicts with the evidence of the mother. 

15. After the matter was last before me the father (consistent with something he told me he might do), told the mother that he didn’t intend to proceed with the appeal and was withdrawing the stay application. 

16. The mother’s evidence is that on 28 January the father sent an email to that effect.

17. The mother’s evidence discloses that on Tuesday 30 January at about 5.30pm her 45 year old sister died very suddenly in a terrible and tragic accident.

18. It appears that there was an unseemly argument between the father and the father’s wife and the mother relating to whether or not the father and his wife should attend the funeral, a remembrance rose scattering ceremony and a wake at the mother’s deceased sister’s home. 

19. For reasons which I don’t intend to explore, the father and his wife concluded that it would be appropriate for them to involve themselves in those events.  The father also thought it would be a good idea at the wake to serve on the mother documents that she already had in relation to these proceedings.

THE EXTENT OF THE STAY SOUGHT

1. The father’s application seeks a stay of all orders made on 16 January 2007. 

2. The full text of the orders are below.  Those orders have been amended slightly today by consent and I will incorporate into these reasons a note in respect of those amendments:-

   1.The orders of 2 May 2002 are discharged from two days before the commencement of school term in 2007. 

   2.2.1    Subject to this order, both parents have equal shared parental responsibility in relation to the children [J] born [in] December 1992 and [H] born [in] April 1994 (“the children”).

   2.2.Except in circumstances where the immediate welfare of either child is threatened by delay, neither party shall make any decision in relation to an issue regarding the long term care, welfare or development (including schooling arrangements, medical procedures or health treatment) regarding either child without first consulting the other parent, such consultations to be:-

   2.2.1.commenced in writing;

   2.2.2.commenced at least 42 days in advance of any key or significant date regarding the issue;

   2.2.3.concluding with the other parent’s written consent, which consent shall not be unreasonably withheld.

   2.3.The mother is permitted to enrol the children at R College, South Australia, commencing in Term 1 in 2007.

   2.4.The mother shall:-

   2.4.1.provide to the father as soon as they are received copies of school reports, school newsletters and school calendar(s);

   2.4.2.if necessary, authorise the children’s school to communicate with the other parent;

   2.4.3.give the other parent one month advance notice of parent/teacher meetings and school functions such as open days, concerts, school carnivals, sporting carnivals and awards functions.

   2.5.Each parent, as soon as is reasonably practicable, advise the other parent of any emergency involving or affecting either of the children and in the event that either parent is not contactable for any period on his or her usual telephone number then that parent will provide to the other parent an urgent contact phone number or numbers for that period. 

   2.6.In the event of either child suffering illness or injury requiring hospital treatment the parent having care of the child at that time shall inform the other parent as soon as is reasonable practicable and in any event within 12 hours, and shall provide such authorisation as may be necessary for the other parent to obtain information about the child’s condition and treatment.

   3.The children live with the mother from two days before the commencement of their school year in 2007.

   4.Thereafter the children spend time with the father at the following times and subject to the following conditions:- 

   4.1.Each year, at the father’s option:-

   4.1.1.for all of two of the three school holidays between the first and second terms (Term 1 holiday), the second and third terms (Term 2 holiday) and the third and fourth terms (Term 3 holiday);

   4.1.2.the father will give notice of which entire holiday periods he choses in accordance with order 4.14;

   4.1.3.in relation to that term holiday where the children are not with their father for the entire time, for the first half of that holiday in even numbered years (and for that purpose zero will be an even number) and for the second half in odd numbered years.

   4.2.In the December/January holidays for the first half commencing in December in even numbered years (and for that purpose zero will be an even number) and for the second half in odd numbered years. 

   4.3.When the children are to be with the father for one half of a school holiday period, the number of days they will be with their father will be calculated as follows:-

   4.3.1.count the number of days in the holiday period (including the days that the children travel);

   4.3.2.divide that number by two and if the result is not a whole number, round that number up to the next whole number;

   4.3.3.the number of days will be inclusive of both the days the children travel.

   4.4.Unless airline schedules make it impossible or the parties otherwise agree:-

   4.4.1.at the commencement of a holiday period of the children’s time with the father in accordance with Orders 4.1 and 4.2, the mother shall deliver the children to Adelaide airport to catch their flight no later than 9am Saturday;

   4.4.2.the father or his nominee shall collect the children from Sydney airport or any other airport in Australia nominated by the father;

   4.4.3.at the conclusion of that period the father shall ensure that the children are delivered to an airport in order to catch a flight that arrives in Adelaide no later than 6pm on the day in which the children’s time with their father concludes;

   4.4.4.the mother or her nominee shall collect the children from Adelaide airport.

   4.5.From Friday evening until Sunday afternoon on the weekend containing Father’s Day.

   4.6.On every long weekend that includes a gazetted Monday public holiday in South Australia and that occurs during school term time.

   4.7.For the whole of the Easter holidays in the event that those holidays are not part of the school holiday between the first and second terms.

   4.8.At the father’s option from Friday evening until Sunday afternoon of weekends during school term time so that:-

   4.8.1.The children are not required to travel to Sydney to see their father on any more than two occasions each school term (including occasions referred to in orders 4.5 and 4.6;

   4.8.2.The father will give notice in accordance with order 4.14; 

   4.8.3.These additional weekends will be spaced so that the children are not required to travel from and back to Adelaide on consecutive weekends;

   4.8.4.The weekend shall not include Mother’s Day or the mother’s birthday.

   4.9.Unless airline schedules make it impossible or the parties otherwise agree:-

   4.9.1.at the commencement of a weekend period of the children’s time with the father in accordance with orders 4.5, 4.6, 4.7 and 4.8, the mother shall deliver the children to Adelaide airport to catch their flight no later than 6pm Friday;

   4.9.2.the father or his nominee shall collect the children from Sydney airport or any other airport in Australia nominated by the father;

   4.9.3.at the conclusion of that period the father shall ensure that the children are delivered an airport in order to catch a flight that arrives in Adelaide no later than 6pm on the day in which the children’s time with their father concludes;

   4.9.4.the mother or her nominee shall collect the children from Adelaide airport.

   4.10.At the father’s option, in each school term for one full week in the [W] district while the children attend school, provided:-

   4.10.1.The father shall give four weeks written notice of his nominated week.

   4.10.2.Such nominated week shall not include Mother’s Day or the mother’s birthday;

   4.10.3.Such nominated week shall commence after school on a Friday and conclude by delivering the children to school on the following Friday, or if such week immediately proceeds a period of time during school holidays then the children will be with their father, shall continue into that school holiday time without interruption;

   4.11.The father and the children have telephone contact by landline connection in the mother’s home on three evenings per week of the father’s choosing for up to one hour on each occasion with the father calling the children, such calls to be completed by 8pm.

   4.12.The mother do all things necessary to facilitate unrestricted telephone contact between the children and their father if either or both the children wish to initiate it and both parents use their best endeavours to ensure that mobile phones, dedicated to the communication between the children and their parents, are charged at all times.

   4.13.The father and the children have communication by way of email and other electronic means at all reasonable times and in that regard both parents ensure that when the children are at their home the children are able to communicate with their other parent by “webcam” or similar electronic means and for that purpose each parent install in their home the necessary equipment, software and services.

   4.14.In relation to holiday and weekend contact, on or before the end of the first week of school term the father provide to the mother in writing notification of the dates that the children will spend time with him in the following twelve month period, including what options he exercises in respect of orders 4.1.1 and 4.8 and whether the children are to be sent to Sydney airport or some other airport in Australia.

   4.15.If the mother or the father wishes to take the children overseas they be permitted to take the children out of school for a period not exceeding one week prior to or following their time with the children during a term school holiday period or Christmas school holidays subject to the permission in writing of the school at which each child attends and provided that::-

   4.15.1.The mother’s time with the children will not conflict with time the father will be spending with the children under any notice that he has already given to the mother pursuant to order 4.14;

   4.15.2.The mother will inform the father in writing 42 days prior to her intention to take the children overseas;

   4.15.3.The parent taking the children overseas will provide to the other parent a copy of the written permission they have obtained from the school to have the children out of school.

   4.16.That for one of the Term 1, Term 2 or Term 3 school holiday periods (not the Christmas holiday period except by agreement):-

   4.16.1.the mother may notify the father that the children will not be available for the whole of that term holiday period; 

   4.16.2.the mother can only exercise this option if the father has not already given notice under order 4.14 that the children are to be with him for the whole of this holiday period;

   4.16.3.if the mother exercises her option under order 4.16, by way of compensation the children will spend additional holiday time with their father in the subsequent Christmas school holiday period equal to the time the children have not spent with their father during that school holiday period when the children were with their mother.

   4.17.Either parent be permitted to take the children to any location overseas provided that it is not to or via a location which the Australian Government website lists as being dangerous.

   4.18.The mother shall hold the children’s passports and if the father wishes to travel overseas with the children as agreed with the mother then she shall ensure that the children have their passports in their possession when they depart from her

   4.19.The parents do all things and execute all documents necessary for any reapplication for expired or soon to be expired passports to be renewed. 

   4.20.The mother shall book and pay for return air tickets for the children to travel between Adelaide and Sydney or any other airport nominated by the father in the notice referred to in order 4.14 for holidays between the 1^st and 2^nd school terms and the December-January school holidays, for the weekend containing Father’s Day and for long weekends, and the father shall book and pay for the children’s return air tickets for all other holidays and all other weekends.  In this regard the party required to book and pay for the airline tickets shall:

   4.20.1.make such booking and payment not less than 21 days prior to the required travel date;

   4.20.2.immediately advise the other party of the flight numbers and departure and arrival times;

   4.20.3.in the event that the mother is required to pay an airfare exceeding the cost of a Adelaide to Sydney return airfare, the father will pay to the mother 35 days prior to the required travel date the amount of that excess. 

   5.The father do all things reasonably necessary to ensure that any interactions which involve:

   5.1.the mother;

   5.2.the children’s school;

   5.3.the children’s health practitioners

   be carried out by him and not be delegated to his wife, […]. 

   6.Each parent be at liberty to attend the children’s school and the Court notes that such attendance is not to be construed as “time with a child or children” nor a breach of any parenting order.

   7.The order for the appointment of the Independent Children's Lawyer shall continue until 30 June 2007.

   8.The parties shall attend on any professional person or persons nominated by the Independent Children's Lawyer for the purpose of counselling and guidance as to how they can conduct themselves as parents and communicate with each other about matters of parental responsibility in the best interests of the children and in order to protect the children from exposure to any conflict between the parties and the spouses of the parties.  In this regard:-

   8.1.The father shall within 7 days of the date of this order contact [Ms V] at Relationships Australia at [New South Wales] on […] to arrange an appointment as soon as practicable for an initial post-separation parenting assessment.

   8.2.The mother shall within 7 days of the date of this order contact the manager or the manager’s delegate at the Family Relationship Centre at [South Australia] on […] to arrange an appointment as soon as practicable for an initial post-separation parenting assessment.

   8.3.Each of the parties shall attend their assessment at any reasonable location nominated by the service provider and complete the assessment.

   8.4.If assessed as suitable and the service provider nominates counselling, mediation or a program(s) to attend, the parties shall attend (as the provider directs) as soon as practicable.

   8.5.Each of the parties shall use their best endeavours to ensure the attendance of any other person or persons at any assessment, counselling, mediation or program as directed by the service provider.

   8.6.The Independent Children's Lawyer has leave to provide a sealed copy of these orders, the reasons for judgment and the reports by [Dr W] dated 2 November 2005 and 30 October 2006 to the relevant service providers.

   8.7.The cost of all counselling, mediation and programs shall be shared equally between the parties.

   9.[The father’s wife] not be present at any time the father indicates with the notice given under order 4.10.1 that he will personally be delivering or collecting the children from the mother’s residence unless the mother otherwise agrees in writing.

   10.The mother shall not remove the children from school until the end of the last days of term except in the case of sickness or emergency.

   11.The mother refrain from sending emails to the father’s work address and only address them in future to […] or such other address as he may notify her of and that she instruct her legal advisers accordingly.

   12.Both parents shall advise the other as soon as practicably possibly of any changes of address or contact details.

   13.The mother reveal her telephone number if she calls any phone of [the father’s] household other that those of her two children and that [the father’s wife] be excused from answering those calls.

   14.The mother refrain from discussing contact arrangements with the children except as a result of their direct approach to her until such time as the father has given the mother notice of what options he intends to exercise and the mother shall not disclose to the boys or discuss with the boys the fact that the father has not taken up options that these orders have given him.

   15.Unless otherwise agreed, the parties communicate about the children and arrangements about the children directly with each other and the mother make all such approaches about contact direct to the father either in writing or by telephone and not through the children or through the wife’s mother or through the father’s wife.

   16.That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

1. These orders were varied today by consent in the following way:

   1.That by consent the orders made on 16 January 2007 be varied as follows:-

   1.1.Order 4.8 be varied by adding the words “in Sydney” after the word “weekends” in the second line.

   1.2.Additional orders 4.10A.1 and 4.10A.2 be added in the following terms:

   “4.10A.1At the father’s option, from after school on Friday evening until 7.30pm on Sunday during school term in the [W] district for one half of the available weekends which are not otherwise accounted for by any order except order 4.10;

   4.10A.2The weekends the father nominates pursuant to order 4.10 will be included as part of his one half of available weekends in [W] pursuant to order 4.10A.1”.

   1.3.Order 4.9.3 be amended to delete “6pm” in the third line and insert “7.30pm”.

   1.4.Order 4.14 be varied by changing the number from 4.14 to 4.14.1 and adding after the word “contact” in the first line the words “in Sydney pursuant to order 4.8”.

   1.5.By inserting a new order 4.12.2 in the following terms:

   4.12.2 In relation to weekend contact in [W], the father provide the mother in writing notification of the dates the children will spend time with him 14 clear days before the Friday upon which that time shall commence and the father will not give written notification of dates or be entitled to have time with the children on more than three consecutive weekends and nominated weekends shall not include Mother’s Day or the Mother’s birthday.

SHORT HISTORY

1. In February 1950 the father was born.  He is currently 56 years of age. 

2. On 1 July 1965 the mother was born.  She is currently 41 years of age. 

3. The parents commenced to live together in February 1992.

4. J was born in December 1992.

5. H was born in April 1994.

6. The parents separated in August 1996. 

7. In late 1999 the mother commenced living with her husband and they married in February 2000.

8. In May 2000 the father commenced living with his current wife and they married in December 2001. 

9. The mother and her husband have had a child, N, who was born in February 2001.

10. The father and his wife have had a child, I, who was born in February 2003. 

11. U born in February 1995 is a normal member of the father’s household.

12. After a four day hearing in February 2002 Mullane J made orders on 2 May 2002 moving the children from their mother to live with their father in circumstances where their mother was moving to South Australia with her husband as a result of changes in his personal circumstances.  The children had been living with their mother substantially since the separation. 

13. The orders that I made on 16 January 2007 changed a situation that had existed since the orders of Mullane J were made in May 2002. 

THE HEARING

1. The hearing took place before me over a 15 day period (5 -9 June 2006 and 6 – 17 November 2006).  Whilst the father was the applicant because of an outstanding application for final orders relating to passports, the larger issue before me was the mother’s application for change of residence which was initiated by the mother on 2 September 2004 in the Federal Magistrates Court, Adelaide Registry.  Between that date and the date of final hearing there had been a number of interlocutory applications, particularly in respect of arrangements in respect of overseas travel. 

THE LAW APPLICABLE TO A STAY OF A PARENTING ORDER PENDING AN APPEAL

1. The Full Court in EJK & TSL (No. 2) [2006] 35 Fam LR 590 quoted, with approval, Nygh J’s comments in Clemett and Kirby J’s comments in JRN & KEN v IEG & BLG (1998) in the following terms:-

   16.  It facilitates our discussion to set out the principles espoused in Clemett and Clemett (supra) to which we have already referred. At 76,175 Nygh J said:

   ‘In determining whether a stay should be granted, the welfare of the child 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. If the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt with within 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. In this case we are satisfied that the appellant is appealing seriously on the merits of the case, that an appeal can be (and has in fact been) expedited within a reasonable time and that the child is properly looked after by the father. There is no indication that his Honour gave any consideration to those matters. If his Honour did, we are of the view he did not give sufficient consideration to them. For those reasons, we are of the view that his Honour exercised his discretion wrongly and consequently that the appeal should be upheld.’

   17.  Although we note that this decision pre-dates the Family Law Reform Act 1995 (Cth) when the whole of Part VII of the Family Law Act 1975 (Cth) (‘the Act’) was subject to ‘the best interests test’, 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 granting or refusing a 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.’

IS THE APPEAL BASED ON SUBSTANTIAL GROUNDS AND IS IT NOT MERELY A DELAYING TACTIC?

1. The first thing I need to consider is whether or not the appeal is based on substantial grounds and is not merely a delaying tactic. 

2. The father filed a notice of appeal on 24 January 2007.  The father has initiated his appeal in a timely way.  The notice contains 19 grounds of appeal. 

3. The appeal from my reasons for judgment is an appeal from a discretionary judgment and limits on an interference by an appellate court on such exercise are well known (see House v King (1936) 55 CLR 499 and Gronaw v Gronaw (1979) FLC 90-716).

4. The father has indicated he believes his grounds of appeal are strong or very strong.  He has taken legal advice in relation to grounds of appeal.

5. I intend to make some comment about each ground.

Grounds 1-4 & 6

1. The first four grounds complain that the Court erred in the application of the test in respect of the threshold issue. 

2. Ground 2 asserts that the Court erred in failing to give reasons or adequate reasons to exercise the discretion not to deal with the threshold issue as the discrete preliminary issue.  Those reasons are given in the second sentence of paragraph 61 of the reasons for judgment.

3. Ground 4 complains that an incorrect standard was used for the threshold test.  The ground states that the Court did not look for a requirement for “strong grounds”.

4. Paragraph 59 of the judgment clearly indicates that that assertion is incorrect.  The cases quoted in paragraph 59 set out the threshold test in a number of different formulations.

5. Ground 6 asserts that the evidence I relied upon on the Rice & Asplund issue was evidence upon which I placed undue weight.  I don’t agree.  The views of boys, particularly at J and H’s ages and maturity, are weighty.  Despite some ambivalence, J’s current preference is clear.  I concluded that his views have to be carefully listened to.  I concluded that H has always had a clearly expressed view that he wants to live with his mother and the fact that I agreed with Dr W’s opinion that these views now should be accepted “at face value”.  I concluded that the children, particularly H, will be more content living with their mother. 

6. Accordingly in my view grounds 1-4 and ground 6 are not substantial. 

Ground 5

1. There is no indication in the grounds of appeal as to the exact evidence of Dr W that has been referred to.  There is no indication in the grounds of appeal as to why it is asserted that statements made by Dr W during evidence are outside his expert qualifications.  No submission was made that Dr W had given evidence outside his field of expertise.  On one occasion Dr W declined to answer a question based on the fact that he didn’t have sufficient expert knowledge to provide an answer.

2. Again I do not think ground 5 is substantial. 

Grounds 7, 8, 9.4, 11 and 19

1. Grounds 7, 8, 9.4, 11 and 19 are grounds which assert that given that I had accepted the father’s version of events in respect of particular circumstances, I had not given consideration to those circumstances in the context of considering matters under sections under s.60CC(2) and s.60CC(3).  The sections specifically referred to are s.60CC(2)(a), s.60CC(3)(c), (f) and (i).  There is a close connection between those four subsections.  It would make a judgment (which is already 107 pages long) considerably lengthier if as part of the exposition of the Court’s reasoning process, findings in respect of particular incidents had to be explicitly rementioned under each of those considerations.  The legislation requires that I must consider the matters under each of those subsections when making a final determination as to what is in the children’s best interests.  The fact that a particular incident in respect of which findings have been made are not rementioned on multiple occasions throughout a judgment does not mean that they have not been considered (see D & P [2006] Fam CA 170).  The weight to be given to those matters is another matter again.  The conclusions shortly stated in paragraphs 432 through to 434 on page 103 and 104 of the judgment set out the matters upon which weight has been particularly placed to reach the ultimate conclusion in relation to what is in the children’s best interests.  Accordingly, I do not consider that grounds 7, 8, 9.4, 11 and 19 are substantial.

Ground 9.1, 9.2 and 9.3

1. There is a complaint that the finding that the mother and her husband gave consistent evidence about the mother’s current use of alcohol is contrary to the weight of evidence.  It is not clear what evidence is referred to.  The level of the mother’s current consumption is set out in paragraph 256.  What evidence is relied upon to assert that the mother’s husband’s evidence is not consistent with that is not clear.

2. Ground 9.2 complains that the Court relied to some extent on the failure of J to say anything about the mother’s use of alcohol in circumstances where Dr W had not asked J any questions about it.  The reasons for judgment do not rely upon the fact that J was asked questions by Dr W to which he gave a negative reply but simply relies upon the fact that in general discussions with Dr W over four interviews, J did not make reference to Dr W about anything that or give Dr W a reason to make comment about the mother’s use of alcohol.  I will say something in more detail momentarily about what is in Dr W’s report about his conversations with both boys in respect of the mother’s husband.

3. Ground 9.3 complains that the conclusion reached in paragraph 260 is without reasons or without adequate reasons given conclusions about the credit of the mother.  My conclusion in relation to the credit of the mother (as well as the other three main adults) was set out at paragraph 137.  That is, if there was an inconsistency in sworn evidence I would seek to determine the matter by the use of other evidence or make a decision based on what version was inherently likely.  I accepted the mother’s evidence in relation to her current alcohol use based upon the lack of any report of any incidents since March 2005 by the children, or by anybody else and the failure by the father to ask the maternal grandmother any questions about her experience of the mother’s use of alcohol whilst she was present in her daughter’s home.  Accordingly I do not think grounds 9.1, 9.2 and 9.3 are substantial.

Ground 10

1. This ground complains that the Court made no finding about the mother’s husband’s mental health other than it did not pose any unacceptable risk.  The reasons for judgment discuss the medical evidence in relation to the mother’s husband’s mental health in some detail and Dr W’s oral evidence in respect of how Dr M’s material should be interpreted.  In that context, the matters noted in paragraph 283 (on page 73) of the judgment need to be taken into account.  The more relevant aspect was the effect that the mother’s husband’s mental health had in respect of the children.

2. Ground 10.1 complains that the Court failed to relate the mother’s husband’s mental health issues to evidence of his violent conduct.  That ground firstly assumes that there is evidence of a relationship (which there isn’t) and secondly that any relationship is of some significance (no submission was made at trial that a significant relationship existed). 

3. Whilst it is true that the mother’s husband’s visit to Dr M in 2005 was stimulated by an incident that happened in March 2005, there is insufficient evidence to relate the mtoher’s husband’s mental health issues to evidence of his violent conduct.  Both have been dealt with under separate headings on the basis of the evidence presented.  I do not consider ground 10.1 to be substantial.

4. Paragraph 10.2 asserts that no question was directed to the children by Dr W about the mother’s husband’s behaviour.  As noted in paragraph 278 (on page 72) of the reasons for judgment, Dr W had Dr M’s notes at the time he saw the children for the second time. 

5. Some note should be made of the matters contained in W’s two reports.  The first report dated 2 November 2005 contains the following observation at page 8:

   “I observed no evidence of any aversion to [the mother’s husband] and, and the boys seemed quite comfortable being looked after by him in the waiting room while I spoke to their mother.”

6. H (aged 11 yrs at time of report) In the first report Dr W recorded three interviews conducted with H. In these interviews H expressed a clear preference for living with his mother, a common theme being problems living with his step bother and step sister due to their bullying behaviour. No mention was made of the mother’s husband except for a brief mention at page 18 where he said his father had recently asked him questions about the mother’s husband.

7. The discussion in the first report about the mother’s husband with J is contained at pages 21 and 22 of the report, beginning second last paragraph on the bottom of page 21.  Dr W records an interview with J where he reveals that:

   “He has been told new information about [the mother’s husband] by his father that has changed his opinion about living with his mother. He was very evasive of what he had been told, said that it didn’t affect him but affected his mother. He said that he still wished to lived with his mother and regretted expressing a preference to live with his father during the first court case.”

8. At the request of his father, J came back to see Dr W to discuss the “carpet incident” where the mother’s husband had allegedly dragged J and H across the floor resulting in carpet burns. The Dr W comments at page 22:

   “At [the father’s] request I saw [J] briefly to ask him about the carpet burn incident.   In response to specific questions he told me that [mother’s husband] ‘had never lost it like that’ previously nor since.”

9. At page 23 the report writer concludes:

   “It was difficult to appraise the boys’ relationship with [the mother’s husband]. He takes more of a back seat, which generally is an appropriate position for a stepparent, and neither boy spontaneously expressed any adverse views about him. Indeed even when pressed, [J] emphasised that the incident of the carpet burns was a one-off and that he had never seen [the mother’s husband] “lose it: like that before, whereas both he and [H] identified [the father’s wife] as somebody who is angry quite a bit.”

10. In the updating report dated 30 October 2006, there were several questions asked of the boys in relation to the mother’s husband.  In the interview with J, Dr W asked him about his relationship with the mother’s husband, on page 3:

    “He said that they get on pretty well at the moment. He said it is a lot better than it was a long time ago. He said [the mother’s husband] can get crankier than his father if something is broken but he doesn’t see [the mother’s husband’s] temper as a problem”

11. On page 4 it is recorded that Dr W asked J about the mother’s husband:

    “He said that he does not have a bad temper really. He can get aggressive if things are not done properly, and he seemed to be referring to [the mother’s husband] as quite fastidious. He described him as a “slight clean freak”, but not extreme and he went on to describe people whom he knew had wrapped furniture in plastic as being extreme. He said that [the mother’s husband] does not get angry at all about [the father], then he revised this and said there had been one occasions when [the mother’s husband] had got annoyed where there had been a change in flight time. He said that [the mother’s husband] likes routine and that was one of the sorts of things that would upset him.”

12. In the interview with H on page 5 of the second report, Dr W says:

    “I asked him about [the mother’s husband].  He described him as being nice and said that he teaches them to do things properly.  He told me that they have to do things until they do it right, for example, washing dishes.”

13. The doctor records in contrast on page 5:

    “The boys seem to have concerns about their father’s residence.  [J] discussed conflict with [the mother] and his step-brother [U] quite openly. [H]  also describes [the mother] as having a short fuse.”

14. In his concluding comments on page 7, Dr W, states:

    “Moreoever, I think both feel more comfortable with [the mother’s husband] than they do with [the father’s wife], finding his somewhat obsessive manner easier to live with than her nature.”

15. The lack of reporting of problems by the boys, and particularly J who is an intelligent 14 year old, in circumstances where the evidence is that he gives an even handed report as to what is happening in both households is a matter that in my opinion can be taken into account and is a matter from which inferences can be drawn.

16. Accordingly, it is my view ground 10.2 is not substantial.

Ground 12

1. Ground 12 is a complaint that is the opposite to ground 10.1.  That is, the Court failed to consider the relationship between the findings in relation to violence and the findings in relation to mental health in respect of the mother’s husband.  The fact is that both of those matters were considered in some detail.  There wasn’t a finding available on the evidence of any strong connection between the two and even if there was a finding of a connection, given that they had both been individually looked at in detail the relevance of the connection may not have been significant even if the evidence existed to support a there being a connection.  The assertion that the failure to make this connection led to an error in not finding a pattern of dominance or assertion of control by the mother’s husband is not an assertion which to my view is available.  Accordingly in my view ground 12 is not substantial.

Ground 13

1. Again this ground asserts that the issues violence and mental health are related.

2. As to a lack of finding in relation to the mother’s husband’s mental health, paragraph 274 on page 71 records that Dr W’s interpretation of Dr M’s provisional diagnosis on 4 August 2003 is one which did not fit a more serious condition; one that might mean that the mother’s husband on occasions would exhibit unreasonableness.  In relation to the attendances in 2005, paragraphs 275 and 276 on pages 71 and 72 record that the diagnosis contained in those notes firstly is of obsessive compulsive disorder that would respond well to medication and secondly personality traits in the mother’s husband that weren’t severe.

1. At paragraphs 282 and 283 on page page 73 of the reasons, there is a note that Dr M’s notes weren’t available to Dr W at the time he saw the mother’s husband and the father was given an opportunity to have the mother’s husband re-interviewed by Dr W and the father declined that opportunity.  In those circumstances an appeal based on the fact that the Court has not made a finding about the mother’s husband’s mental health other than it did not pose an unacceptable risk assumes that a conclusive finding about the mother’s husband’s mental health was possible on the evidence which it was not.  The relevant matter though arising from the mother’s husband’s mental health was whether or not it posed any unacceptable risk to the children and there was sufficient evidence to conclude that it did not.  There was nothing in the evidence about the mother’s husband’s mental condition posing a threat to the boys, whether connected to his propensity to violence or otherwise. 

2. At paragraph 280 (page 72) of the judgment it was recorded that Dr W was asked about the effect of the mother’s husband’s mental condition as diagnosed by Dr M on the children.  Dr W said it might mean that he was quite pedantic and possibly quite controlling.  He added however that the encouraging aspect was that he had recognised the symptoms of his behaviour and he had gone to see somebody about it and that he showed some degree of insight and showed that the mother’s husband didn’t think that he was exclusively in the right and Dr W did agree that the mother’s husband’s problems would be less the lower the pressure he was under.  This is relevant to the second part of ground 13 which asserts that there was a failure to address the question of whether or not the risk to the children of being exposed to scenes of violence was unacceptable.  There is in fact no evidence that the children were or have been exposed to scenes of violence at any time or have been and the finding was that the potential for that in the future was low and not one that posed an unacceptable risk. 

3. In my view ground 13 is not substantial.

Ground 14

1. This ground asserts that it is of no relevance that the boys reported nothing that related to domestic violence in the four interviews with Dr W.  I don’t understand the basis upon which it is put that the lack of reporting of something the husband is agitating as a risk is an irrelevant consideration.  In my view ground 14 is not substantial.

Ground 15

1. This ground records that J had some ambivalence in his wishes.  Whilst that is true and is recorded in the reasons for judgment it is also clear that J had a current preference to be with his mother.  The ambivalence in that preference was taken into account.  The strength of J’s preference has to be seen in the light of his maturity.  The ground also totally disregards H’s wishes which are strong and clear and which the expert said need to be taken at face value. 

2. In my view ground 15 is not substantial.

Ground 16

1. This ground complains that the order that was made for Dr W’s second report wasn’t sent to him in writing but was rather communicated with him orally.  Dr W, it is said, thought that the order was simply for a wishes report (and certainly that was the primary reason for the request for the updated report).  The order that was made did, however, give the doctor if he so chose the right to comment on anything else that he thought was important.  The report was released some time before the recommencement of the hearing.  The father had that report prior to the recommencement of the hearing.  He knew what was in it.  No complaint was made before the recommencement of the hearing that Dr W had not properly done what he had been ordered to do or properly addressed subpoena material that had come in since he had done his first report.  The order itself did not specifically direct him to any new subpoenaed material.  The order was made without the father making a complaint about its terms.  The father did not prior to or at the re-commencement of the hearing make any issue about what was in Dr W’s second report.  Dr W had seen all subpoenaed material (including the transcript of Dr M’s notes) prior to him giving oral evidence and being cross examined by the father.

2. In my view ground 16 is not substantial.

Ground 17

1. This ground asserts that I erred in failing to consider matters set out in s.60CC(4)(a),(b) and (c).  This section of the Act requires consideration of the extent to which each parent has fulfilled or failed to fulfil responsibilities as parent in particularly in terms of taking or failing to take opportunity to participate in long term decision making, spending time with and communicating with each of the children and in terms of maintaining the children.  While s.60CC(4) is not specifically referred to in the reasons, the matters referred to in s.60CC(4) are canvassed throughout the judgment in terms of a discussion of the participation of the parents and of their willingness and ability of each to facilitate and encourage a relationship between the children and the other parent and in relation to their attitudes to the responsibilities of parenthood.  Again it is my view that findings of fact can be made relevant to these matters without necessarily identifying and cross referring them between all the interrelated and overlapping subsections (again see D & P [2006] Fam CA 170). 

2. In my view ground 17 is not substantial.

Ground 18

1. This ground complains that the Court didn’t consider whether or not some order could be made to control the husband’s wife’s behaviour so that the complaints against her in the father’s household could be minimised.  The orders referred to as a precedent all go to interactions between the parents in relation to the children.  They do not go to the husband’s wife’s conduct within her own household.  Findings were made in relation to the husband’s wife’s personality and the role that she has played as step parent compared to the role the mother’s husband has played as step parent.  A finding was also made that the children would be more content in their mother’s household.  No argument was put at trial that the husband’s wife’s behaviour in her own household could be controlled by court order.

2. In my view ground 18 is not substantial.

CONCLUSION IN RESPECT OF THE GROUNDS OF APPEAL

1. For reasons set out above, I do not accept the appeal demonstrates substantial grounds.  The father’s indication he intended to appeal before he had the opportunity to consider the reasons gives me some concern.  It was clear when reasons were handed down that he intended to seek a stay whatever the reasons.  His application that the mother be restrained from allowing the boys to go to school in South Australia indicates the appeal is at least in part aimed at delaying the boys’ starting and/or continuing school in South Australia.

CAN THE APPEAL BE DEALT WITH WITHIN A REASONABLE TIME?

1. Counsel for the Independent Children's Lawyer has indicated to me today that her estimates based on the Rules are, that a hearing of this matter might be listed and heard before the Full Court by October, or within a period of 12 months at least.  The father, in his affidavit, indicates that he intends to make an application to the Full Court for expedition.  I have got no evidence as to whether or not he has done anything about that.

2. In the event that either party made a successful application for expedition of the appeal, the appeal might get on more quickly.  Taking into account some time for the preparation of reasons, even if it is expedited, it is unlikely that the result of the appeal would be known prior to the end of the second term in 2007.  Counsel for the Independent Children's Lawyer has pointed out, the father as a litigant in person may not find the preparation of an appeal an easy task and speculated he may not meet all deadlines.  I note, however, the father has been pretty good at meeting deadlines up until now. 

3. The preparation of the appeal books for the 15 days will be expensive and the father has not said anything in his material about his ability to fund the appeal, although my my reasons for judgment would indicate that I believe that he would be able to fund the costs of the preparation of the appeal.

4. The question is whether or not two school terms is a “reasonable time” at the current stage of the children’s schooling. 

5. Whatever I do there is a risk that the children’s schooling for 2007 could be substantially disrupted given the amount of time it will take the appeal to come on.  Whilst it might be that six months to get a result from the Full Court is reasonable when one looks at the normal litigation pathway, the other issue in relation to the reasonableness of time arises from the particular circumstances that the boys find themselves in in respect of their secondary education.  I have to take into account in a meaningful way the amount of time that it is going to take for the appeal to be disposed of.  Accordingly, I find that two school terms is not a reasonable time for which to delay the arrangements which I have otherwise found to be in the boys’ best interests. 

ARE THE PRESENT CIRCUMSTANCES OF THE CHILDREN SATISFACTORY?

1. The father’s case is that this means circumstances prior to the orders were made, as the father asserts in his supporting affidavit, there was no evidence that the children were at risk in remaining in his household but he acknowledged the criticisms made in the reasons for judgment as to what has been happening in the father’s household.  Whilst I have found that the children would be more content living with their mother, the circumstances in which the boys were prior to the orders that I made would be considered as “satisfactory”. 

2. But there is a question as to what is “the present circumstances of the children” means. 

3. Counsel for the Independent Children's Lawyer has referred me to the authority of K & B (2006) FLC 93-288, and in that case the Full Court considered the question of the relevance of status quo to the exercise of a discretion when considering a stay in children’s cases. Their Honours dealt with a previous statement by Ellis J in the Full Court in W & W (unreported 10 October 1996).  At paragraph 32 they said:

   “...the interest of children would not be promoted by an inflexible requirement of presumption in every case to maintain the status quo prior to the making of the orders subject to the stay application, and to ignore unsatisfactory arrangements at the time of the orders, or significant events which have occurred after the making of the orders”.  [emphasis added]

DOES A REFUSAL OF A STAY RENDER A SUCCESSFUL APPEAL NUGATORY?

1. I agree with Counsel for the Independent Children's Lawyer that in the event that the father’s appeal is successful and on a re-exercise of discretion or a re-hearing, the children were ordered to go back to him, then, the children would relocate (hopefully for a final time) from Adelaide to Sydney.  Whilst that would be disruptive for them, if that’s what the Court decided was in their best interests at that time then there is no reason to believe that that would not happen.

2. Whilst not annexed to his original affidavit, the father handed up written information from Y High to the effect that J wasn’t going to lose his place at Y High as long as arrangements can be made by the end of term 2, 2007.  That is inconsistent with the evidence that the father has given in paragraph 21 of the affidavit sworn on 8 February, which simply says that the principle has agreed to keep the position open for J pending the outcome of the stay application.  I am not sure which piece of evidence is correct. 

3. In my view it cannot be said that the dismissal of the stay application would render a successful appeal nugatory. 

IS THERE ANY HARDSHIP FOR EITHER PARENT AS COMPARED TO THE OTHER IN GRANTING OR NOT GRANTING A STAY?

1. Hardship suffered from either party as a result of the grant or refusal of the stay is not a matter of any great relevance.  More importantly it is the hardship that the boys will suffer, particularly in relation to disruption to their 2007 schooling one way or the other as a result of my decision in this application that I need to carefully consider.

EVEN IF J & H’S BEST INTERESTS ARE NOT PARAMOUNT, ARE THEY ON THE FACTS OF THIS CASE A SIGNIFICANT CONSIDERATION AND IF SO, WHAT IS THE BETTER ORDER TO MAKE IN THEIR BEST INTERESTS?

1. I conclude that on the facts of this case they are a significant consideration.  I need to take into account the events that led to the children commencing to go to school at R College.  I said on 25 January that the timing of when the application for a stay would be heard was unfortunate.  That is, it was being dealt with today as opposed to being dealt with on 25 January.  The fact was that on the 25^th and despite the warning I gave on 16 January 2007, the father failed to afford procedural fairness to the mother and the matter, for the reasons I gave on that day, could not proceed.  What flowed from that was that the orders that were in place took effect.  The children have in fact commenced their school at R College.  The father makes a point they have only been there, on his version, seven days.  The mother gives a version that they have been there slightly longer than that.  Neither have counted the days they have been there this week. 

2. An order for a stay would have the effect of taking the children from the school which they have now started for 2007 and returning them to the schools that they previously attended. 

3. I am concerned with the effect of that on the children’s schooling.  Obviously it is highly desirable that any change of residence take place before the commencement of a school year.  That is why I indicated during the hearing that I would attempt to deliver my reasons in time for everybody to know what was happening prior to the commencement of school year and the reason why I attempted to give the father an opportunity to agitate his stay application prior to the commencement of the school year.  As I have said, he was unable to take up that opportunity.  Clearly it is generally easier for children to settle into a new school and a new academic year at the same time as other new students are coming to a school.  That’s when new friendships are established and new groups are formed.  The mother has told me today that one of the boys has formed a friendship with the son of the principal.  Quite simply, the process of children adapting to a new school is easier for them at the beginning of the school year than it is half way through a school year.

4. I am mindful of the father’s evidence that there are certain things that J is missing out on at Y Selective and in the event that the appeal is successful there will be certain difficulties that he will face.  But I have to balance the competing difficulties. 

5. Had the stay application been determined on 25 January, I would not have been faced with the situation that the boys had already started at R College, but given that they have I do not intend to interrupt that arrangement.

6. In the event that the appeal is unsuccessful the children, if I granted the stay, would then have to go back to R College.  There would inevitably be some embarrassment and explanation as to why they had gone to R College for a couple of weeks and had vanished and then come back again. 

7. I also as a general matter take into account the age of the children and my findings in relation to their respective wishes which, as I have said in the judgment, are a very weighty matter to consider in this case. 

CONCLUSIONS

1. No significant hardship will be suffered by the father if the stay is refused.

2. I do not consider the appeal is based on substantial grounds.

3. The refusal of the application for stay does not render a successful appeal nugatory.

4. I conclude that the interests of J and H will be promoted by leaving them where they are for the period it takes for the appeal to be concluded.  In doing so I take into account what I have found to be in their best interests in reasons expressed on 16 January 2007.  I take into account a significant event being their establishment in the R College, South Australia, which event has occurred after the making of the orders.

5. Given the mother’s sister’s tragic death, I have got no doubt that this has been a confusing and depressing time for both the mother, J and H.

6. Moving the boys out of R College and back to Sydney would be just another upheaval in the boys’ lives which I conclude is not in their best interests at this time. 

7. Accordingly I decline the father’s application to stay the orders. 

I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts.  

Associate: 

Date: 

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as GLEESON & LEIGHTON