Graham and Kovacs (No 5)

[2015] FamCA 1115

FAMILY COURT OF AUSTRALIA

GRAHAM & KOVACS (NO 5) [2015] FamCA 1115

FAMILY LAW – CHILDREN – CASE APPLICATION – application dismissed – consideration of best interests of children – where a stay of orders is sought pending appeal – where if stay granted would render appeal nugatory.

Family Law Act 1975 (Cth)

Windsor & Carver [2015] FamCA 668
Aldridge v Keaton (Stay Appeal) (2009) FamCAFC 106

APPLICANT: Mr Kovacs

RESPONDENT: Ms Graham

INDEPENDENT CHILDREN’S LAWYER: Ms Gray

FILE NUMBER: CSC 762 of 2010

DATE DELIVERED: 10 December 2015

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Tree J

HEARING DATE: 10 December 2015

REPRESENTATION

THE APPLICANT: In person

SOLICITORS FOR THE RESPONDENT: Sandra Sinclair Lawyers

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: Susan Gray

Orders

1. Paragraph 2 of the father’s Application in a Case filed 26 November 2015 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Graham & Kovacs (No 5) 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 TOWNSVILLE

FILE NUMBER: CSC 762 of 2010

Mr Kovacs

Applicant

And

Ms Graham

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By application in a case filed 26 November 2015, the father seeks an order that there be a stay of all orders that I made in these parenting and property proceedings on 13 August 2015 and 29 October 2015.  In support of that application, he relies upon an affidavit, sworn or affirmed by him on 26 November, and also an earlier affidavit which, although not presently before me, contained only one sentence which says “I am the father” or words to like effect.  The father’s application is opposed by both the mother and the independent children's lawyer. 

2. It is unnecessary to recite the extensive history of the litigation between these parties.  It has been sufficiently traversed in the many judgments which I have to date given in these proceedings, most recently being the reasons which I delivered on 21 October for the final orders which I then made.

3. The principles relevant to the grant of a stay pending an appeal have been recently and helpfully traversed by Foster J in Windsor & Carver [2015] FamCA 668 at paragraphs 26 to 33 as follows:

   26. The law as to the general principles applicable to a stay pending appeal is well settled. 

   27. In Aldridge v Keaton (Stay Appeal) (2009) FamCAFC 106, the Full Court said at [17]-[18]:

   This is an appeal from a discretionary judgment.  There are well established principles on the limits on interference by an appellate court with such a judgment.  See House v The King (1936) HCA 40, Gronow v Gronow (1979) HCA 63 at paragraph 18.

   The principles to be applied in determining an application for stay of orders, both in the general law and in respect of parenting proceedings are also well known.  See The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (No 1) (1986) HCA 13, Alexander v Cambridge Credit Corporation (1985) 2NSWLR 685, Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited (1986) HCA 84, Clemett and Clemett (1981) FLC 91-013, JRN and KEN v IEG and BLG (1998) 72 ALJR 1329.

   28. The Full Court then said at [18]:

   The authorities stressed the discretionary nature of the application which should be determined on its merits. The principles relevant to this matter include the following:

   ·The onus to establish a proper basis for the stay is on the applicant the stay.  However, it is not necessary for the applicant to demonstrate any special or exceptional circumstances;

   ·A person who has obtained a judgment is entitled to the benefit of that judgment;

   ·A person who has obtained a judgment is entitled to presume the judgment is correct;

   ·The mere filing of an appeal is insufficient to grant a stay;

   ·The bona fides of the applicant;

   ·A stay may be granted on terms that are fair to all parties.  This may involve a court weighing the balance of convenience and the competing rights of the parties;

   ·A weighing of the risk that an appeal may be rendered nugatory if a stay is not granted.  This will be a substantial factor in determining whether it will be appropriate to grant a stay;

   ·Some preliminary assessment of the strength of the proposed appeal whether the appellant has an arguable case;

   ·The desirability of limiting the frequency of any change in the child’s living circumstances;

   ·The period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time;  and

   ·The best interests of the child, the subject of the proceedings are a significant consideration.

   29. The Full Court at [36] referred to K & B (2006) FamCA 848, stating:

   The Full Court dismissed a stay appeal where it found that the arrangements which existed for the particular child at the time of trial were not satisfactory and, therefore, the maintenance of the status quo, pending the determination of the substantive appeal, was not in the child’s best interests.

   30. The Full Court at [32] explained why, in a parenting appeal, the granting of a stay to maintain a status quo is not always appropriate or the best interests of a child may dictate refusal of a stay as appropriate.  Their Honours said:

   The granting or refusal of a stay involves an exercise of discretion by a trial judge.  While such discretion must be exercised judicially in cases involving children, we accept that from time to time circumstances in existence at the date of the orders or which occur from the date of the orders until the hearing of a stay application, may be very relevant matters to be considered in the exercise of discretion in determining whether or not to grant a stay. 

   The interests of the children would not be promoted by an inflexible requirement or presumption in every case to maintain the status quo prior to the making of orders the subject of the stay application and to ignore unsatisfactory arrangements at the time of the orders or significant events which have occurred after the making of those orders.

   31. In Clemett and Clemett (1981) FLC 91-013, Nygh J refused the husband’s application for stay of orders pending the appeal. His Honour said at 76,175:

   In determining whether a stay should be granted, the welfare of the child is the paramount consideration.  It is especially desirable for the frequency of any changes in the custodial arrangements relating to the child should be limited as much as possible.  If the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt with in a reasonable time and the present circumstances of the child are satisfactory, it will be appropriate to grant a stay of proceedings for at least a short period of time.

   32. In EJK v TSL (2006) FamCA 806, the Full Court had the opportunity of considering what was said by Nygh J, in Clemett (supra) in the context of the subsequent enactment of the Family Law Reform Act 1995 (Cth). The Full Court at [17] said this in relation to the principles espoused in Clemett (supra):

   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.

   33. The importance of the consequences for a child of the granting or refusing of stay are well recognised.  In JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332, Kirby J said:

   In my opinion, some adaptation of the rules stated in the cases governing stays in this court must also occur in cases which affect significantly third parties who are not parties before the court and, in particular, children whose welfare must always be in the mind of a court in making an order affecting their interests. 

4. It is convenient, by reference to the considerations identified in Aldridge & Keaton (Stay Appeal), to evaluate the father’s application.  The first relevant consideration appears to be whether or not the appeal has been brought bona fide.  It is unnecessary for me to consider that in detail because both the mother and the independent children's lawyer concede that the father is bona fide in bringing and prosecuting the appeal.

5. The next matter that appears to be relevant from the Aldridge & Keaton list of considerations, is whether or not the appeal may be rendered nugatory if a stay is not granted.  Here, consequent upon the orders which I made, the father is to spend fortnightly time with the children, albeit at a lesser level than had prevailed prior to then. 

6. The effect of a stay would be to increase the time which the father could spend with the children under the previous orders. That would not to make the appeal nugatory, rather all that it would do is return the father to an increased amount of time with the children.  The appeal would not be rendered nugatory if a stay is not granted.

7. The next consideration is a preliminary assessment of the strength of the proposed appeal, and particularly whether the appellant has an arguable case.  The applicant has filed two notices of appeal.  The first relates, it seems, to my first set of orders in August.  The second relates to the October orders.  I have carefully considered both of those notices of appeal.  It is unnecessary to set out the very many grounds in which the father alleges the errors which affected my two sets of orders.  Suffice to say that some of them do not appear, to my mind, to be cast as any form of a proper ground of appeal, but some plainly allege bias and seem to allege that I was allowing myself to be improperly influenced by other unspecified judges.

8. The second set of appeal grounds also contain a number of such allegations but also contain allegations such as that I deliberately orchestrated delays so as to deny the father access to justice, and that I erred in some factual respects.  For instance,  it is said that I erred in failing to “…appropriately recognise that the mother was involved in sending police to the appellant’s house on 16 August 2014.”  I am not persuaded that those grounds of appeal enjoy any real prospect of success. 

9. However, the father also appeals in relation to my dismissal of his outstanding contravention applications in August 2015, when the father did not appear on the day when they had been listed for disposition.  Although unclear, it appears as though the father alleges that the appropriate course was not to dismiss them but to adjourn them.  I cannot wholly rule out that ground of appeal succeeding.  However, the effect of a stay, were one to be granted, would not, in fact, effect the resurrection of those contraventions.  Therefore, even though there may be some merit in that aspect of the father’s grounds of appeal, it does not seem to be merit which informs whether or not a stay should be granted. 

10. Otherwise, I am not satisfied that the father’s grounds of appeal, on my preliminary assessment of them, demonstrate a strong or even a reasonably arguable case of error.

11. The next consideration is the desirability of limiting the frequency of any change in the child’s living circumstances.  It appears as though the father has not seen the children now for some time.  That is because the parties, for whatever reason, do not appear to have acted with the expedition one might have expected them to act with, to obtain the services of the contact centre at which changeovers of the children between the parents’ care was contemplated by my orders.

12. However, the orders which prevailed prior to then appeared to have fallen into a degree – a considerable degree – of disrepair, albeit I accept that from time to time the father was, indeed, spending time with the children pursuant to those earlier orders.  It is difficult, therefore, to properly gauge the extent to which there will be changes in the children’s living circumstances by virtue of the orders which I made, given the somewhat chequered history of the children spending time with the father prior to then.  Even if there be some change of significance in the children’s living circumstances by virtue of my orders of 21 October, I am not satisfied that it is of such moment as to properly dictate that a stay should be granted.

13. The next consideration is the period of time in which the appeal can be heard.  Mr Kovacs estimated that an appeal could be brought on for hearing within two or three months.  It may be that he can obtain expedition and have the appeal disposed of in that time.  However, my experience would suggest that he would be unlikely to get the appeal on within six months and it is more likely to be within 12 months, although I hope I am proved wrong.  Nonetheless, it appears as though there is likely to be a substantial period of time between this hearing of the father’s stay application, and the likely disposition of the appeal.

14. Plainly, if I had ordered that the children spend no time with the father, that would be an important consideration, given the prospect for the wholesale termination of the father’s relationship with the children.  However, that is not the effect of the orders which I have made, which were intended to maintain the relationship between the father and children going forward. 

15. The final consideration is the best interests of the children, which the Full Court has identified is a significant consideration.  There is nothing in the evidence relied upon by the father in support of his application which is at odds with the state of the evidence before me when I delivered my reasons on 21 October 2015.  There is, therefore, no reason to revisit the conclusions which I then made in relation to the best interests of the children.  I am indeed satisfied that the best interests of the children presently lie in the regime of orders which I made on 21 October and, therefore this consideration only serves to tell against the grant of a stay.

16. Weighing all of those considerations in the balance, I am not satisfied that it is appropriate or otherwise in the interests of justice to order a stay in this case and, therefore, that part of the father’s application in a case filed 26 November 2015 that seeks a stay of my orders will be dismissed.  I therefore order that paragraph 2 of the father’s application in a case filed 26 November 2015 be dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 10 December 2015.

Associate: 

Date:  10 December 2015