Haering & Willis (No 2)
[2023] FedCFamC1F 914
•16 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Haering & Willis (No 2) [2023] FedCFamC1F 914
File number(s): BRC 12158 of 2020 Judgment of: JARRETT J Date of judgment: 16 October 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Stay application – Where final parenting orders where made changing residence from respondent to applicant – Where orders were executed and residence changed prior to respondent applying for a stay – Where granting of a stay would result in multiple changes of residence if appeal is unsuccessful – Where only short time until appeal to be heard – Where appeal does not have strong prospects of success – Application dismissed Legislation: Family Law Act1975 (Cth) Part VII, ss 4AB, 60CC, 60CG Cases cited: Aldridge & Keaton [2009] FamCAFC 106
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Division: Division 1 First Instance Number of paragraphs: 22 Date of hearing: 16 October 2023 Place: Brisbane Counsel for the Applicant: Mr Hartwell Solicitors for the Applicant: Lander Solicitors Qld Solicitors for the Respondents: Litigants in person Counsel for the Independent Children’s Lawyer: Ms Bertone Solicitors for the Independent Children’s Lawyer: ELR law ORDERS
BRC 12158 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HAERING
Applicant
AND: MS WILLIS
First Respondent
MR HAERING
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
16 OCTOBER 2023
THE COURT ORDERS THAT:
1.Orders 1, 3, 4, 6, 8 and 9 of the Amended Application in a Proceeding filed on 16 October, 2023 be dismissed.
2.Each party meet their own costs in the proceeding.
3.A copy of the tender bundle compiled by the independent children’s lawyer for the hearing on 26 and 27 July, 2023 be provided to the appellant and to the parties to Appeal NAA237/2023.
4.A copy of the Subpoena Tender Bundle compiled in compliance with orders 8, 9, 10 and 11 of the order of Judge Cassidy of 25 May, 2022 be provided to the Appellant and to the parties to Appeal NAA237/2023.
5.To the extent that leave is necessary in respect of orders 3 and 4 herein, then such leave is granted.
Note: The form of the order is subject to the entry in the court’s records.
Note: This copy of the court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
This is an application for a range of orders. One might be described as a stay of certain orders that were pronounced by me on 18 August, 2023 and now the subject of an appeal by Ms Willis. Other orders are more of a procedural nature.
I will deal with the application for a stay first, that is, order number 1 in the amended application lodged on 13 October, 2023. Allied with that is order number 3 of that application, which, if the stay is successful, requires “the court revert back parenting contact in parenting orders 1, 2 and 3 in its entirety made by [the] Senior Registrar […] on 31 March 2021”.
An application for stay of parenting orders is a request for the exercise of a discretionary power to stay the operation of orders until such time as an appeal has been determined. In parenting cases, the authorities stress the discretionary nature of the relief and that discretionary nature is underscored by the various matters that the court needs to take into account. Each case needs to be determined on its merits. In Aldridge & Keaton [2009] FamCAFC 106, the Full Court said this at [18]:
Principles relevant to this matter include the following:
•the onus to establish a proper basis for the stay is on the applicant for 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 a child’s living arrangements;
•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.
Ms Willis bears an onus to establish that there is a proper basis for the stay that she seeks. Mr Haering is entitled to the benefit of the orders that the court has made; so, too, is X. He is entitled to presume that the judgment is correct. So, too, is X.
I have no doubt that the appeal is bona fide. I have no doubt that Ms Willis truly believes that the judgment that I made and the reasons for which I made it are erroneous and that the matter needs to be corrected on appeal. I do not consider that she is motivated by any mala fides.
There is no risk here that the appeal will be rendered nugatory if the stay is not granted. That is because the orders that were pronounced on 18 August, 2023 have been put into effect. The orders effected a change in residence for X whereby she moved from living with the applicant to living with the second respondent in the principal proceedings, Mr Haering. The granting of a stay would, in fact, upset the present status quo in that it would require X’s to return to live with the applicant. Ms Willis agreed with me in the course of her submissions that it would not be desirable for X’s residence to change now from Mr Haering’s residence back to her own and then, if the appeal is unsuccessful, for it to then have to change again. It is self-evident, I think, that frequency of change would be entirely undesirable.
The appeal is to be heard on 22 November, 2023. That is a little more than four weeks from today and so in the event that there is a change of residence now because the stay has been granted and another change in residence in four or so weeks’ time because the appeal was unsuccessful, it would mean that X’s arrangements, her social engagements, her schooling and her day-to-day life would be terribly disrupted. That analysis throws up the question of the relative strength of the proposed appeal.
There is a notice of appeal that has been filed. I am told that there is an amended notice of appeal, but it has not yet been filed. The notice of appeal is in general terms, although it has six grounds. The first alleges that there was a failure to properly exercise the relevant discretion; that there was inadequate reasoning to explain the decision; that there was too much weight given to certain “hearsay evidence” or unsubstantiated statements made by Mr Haering, the second respondent in the principal proceedings. It is suggested that the orders have been made in excess of jurisdiction and are “profoundly unsafe”.
The second ground asserts that I failed to apply the Family Law Act1975 (Cth) in line with precedent and legislative intention and, in particular but not only, in relation to the s 60CC provisions. Particular emphasis is placed upon the exposure of X to family violence, as that term is defined in s 4AB of the Act and it is asserted that I failed to apply the mandatory provisions in s 60CG and the objects of Part VII of the Act.
The third ground asserts that I failed to evaluate family violence and I failed to give adequate weight to relevant evidence, minimising probative and relevant evidence and a “fully tested protection order made on 27 July, 2020 that identifies risk to the child [X]”. This ground also asserts a failure to observe the provisions of s 60CG of the Act.
The next ground asserts that there was a denial of procedural fairness by “dismissing evidence, giving no weight to some evidence that identifies the father’s unsafe behaviour, including but not limited to inappropriate sexual behaviours and a misalignment with the requirements of the Evidence Act (1995) [sic] and the weighting of testimony in line with good practice as it relates to Family Violence”.
The next ground asserts that I failed to properly evaluate “the psychological impact on [X] on the loss of her primary attachment and close sibling, [H]”.
Finally, ground 6 asserts that I showed bias in the management of the parties and, in particular but not limited to, the balancing of the facts and weighting of the evidence in line with the fair hearing rule.
Each of those grounds, more or less, amounts to an assertion that I have placed too much weight on some evidence and not enough weight on other evidence. Weight arguments like that face a very high hurdle. So says the High Court in cases like House v The King (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513. Whilst I cannot reach a conclusion that the appeal is without merit on its face, its merits do not appear to be particularly strong.
Bearing in mind that the best interests of the child who is the subject of these proceedings, is a significant consideration on the present application; bearing in mind the proximity of the date for the hearing of the appeal; bearing in mind the havoc that may well be wrought to X’s life if the stay was granted, only then for the appeal to be unsuccessful; and bearing in mind what appears to be grounds of appeal that, though not meritless, are not particularly strong, it seems to me that, as an appropriate exercise of my discretion, I should refuse the stay. That deals with paragraphs 1 and 3 of the amended application in a proceeding.
Paragraph 4 of the amended application in a proceeding seeks leave for the independent children's lawyer, or a party to the proceedings, to request an updated s 69ZW report, “in line with the same mentioned orders as above and, in particular, order 9, updated from 21 March, 2021”. No occasion immediately rises for the making of that order because these proceedings are at an end. All that remains outstanding is the appeal. If the appeal is dismissed, the proceedings are finished. There is nothing in respect of which a s 69ZW report, for want of a better description, would respond. In the event that the appeal is successful it may be that, if the Full Court is persuaded to re-exercise the discretion, it might make directions for the receipt of new evidence. Alternatively, it might remit the matter for rehearing. In the event that it remits the matter for rehearing, an occasion would then arise for the making of an order such as that set out in paragraph 4 of the amended application in a proceeding if thought appropriate.
The next order sought is this: (errors in the original)
That the tender bundle compiled by the ICL Elizabeth Rament for the hearing 26 and 27 July 2023 that was rejected by the presiding judge and referred to in the attached affidavit for this application but provided to the Appellant and parties to Appeal NAA237/2023.
I do not understand the need for that order because, no doubt, the tender bundle was provided to the parties before the trial. In any event, it might be that, if the applicant/appellant sees that it is necessary for that tender bundle to be before the Full Court, no doubt if a request is made for its provision from the independent children's lawyer, it will be provided. In the event that I erroneously have assumed that there was an order for leave for such a bundle to be provided to the parties prior to the trial and there was not, I make that order now.
The next order sought is for a copy of my associate’s response to an email sent at 10.21am on 25 July, 2023 by the independent children’s lawyer to my associate “regarding leave as it related to the tender bundle for the matter listed 26 and 27 July, 2023”. I am not sure what that means. There is no occasion for the making of order 6.
Order number 7 seeks this order: (errors in the original)
That the tender bundle referred to as the “Subpoena Tender Bundle” created under order 8, 9, 10, 11 made by Judge Cassidy 25 May 2022 be provided to the Appeallant and parties or in the altrenate, just the Appellant made available in the registry at [City P] or elsewhere by agreement with the court as per Orders.
It is unclear from the material whether that is the same subpoena tender bundle as that referred to in order 5 sought in the amended application in a proceeding. But, again, no doubt if leave has been granted, there could be no opposition to it being provided again. To the extent that there is no leave, there should be. It might be that the appellant says that it is relevant to the appeal. I can make an order for leave for that subpoena tender bundle, created under order 8, 9, 10 and 11, if any, be provided to the appellant and the other parties to the appeal.
Order 8 is in these terms: (errors in the original)
The appellant be granted leave to view Subpoena number 17 (also referred to as ‘13 suppressed subpoena’) AS and the 93A recording previousuly viewed in court 26 and 27 July 2023 in the registry at [City P] or elsewhere by agreement with court as per Orders.
The parties already had, for the purposes of the trial, leave to view these documents. No further leave is necessary.
Finally, the applicant seeks an order: (errors in the original)
The court provide reason in writing for decisionons as it relates to the orders requested, mentioned above.
My reasons will be reduced to writing in the usual way and they will be made available when the transcript of the reasons is available and they have been settled.
So, by way of summary, orders number 1, 3, 4, 6, 8 and 9 are dismissed. As to orders 5 and 7, to the extent that leave is necessary, there will be an order for leave.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 16 October 2023
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