Hande and Anor and Marlowe

[2013] FCCA 1740

FEDERAL CIRCUIT COURT OF AUSTRALIA

HANDE & ANOR & MARLOWE [2013] FCCA 1740

Catchwords:
FAMILY LAW – Stay application – application dismissed.

Aldridge & Keaton (2009) FamCAFC 106

Gronow v Gronow (1979) 144 CLR 513

House v The King (1936) 55 CLR 499

Applicants:

MR HANDE AND

MS HANDE

Respondent: MS MARLOWE

File Number: SYC 7156 of 2012

Judgment of: Judge Henderson

Hearing date: 15 October 2013

Date of Last Submission: 15 October 2013

Delivered at: Sydney

Delivered on: 15 October 2013

REPRESENTATION

Solicitors for the Applicant: Cater & Blumer

Counsel for the Respondent: Mr Dura

Solicitors for the Independent Children’s Lawyer: Legal Aid Nsw Bankstown Family Law

ORDERS

1. The application for a stay of the orders made by Judge Walker on 3 October 2013 is dismissed.

2. The applicants shall cause the child X born (omitted) 2009 to be delivered to the Respondent, Ms Marlowe at the (omitted) car park in (omitted) on 17 October 2013 at midday.

IT IS NOTED that publication of this judgment under the pseudonym Hande & Anor & Marlowe is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 7156 of 2012

MR HANDE AND

MS HANDE

Applicants

And

MS MARLOWE

Respondent

REASONS FOR JUDGMENT

1. This is a stay application brought by Mr Hande and Ms Hande who are the paternal grandparents of a child named X who was born on (omitted) 2009, and is aged four years. The stay is brought as a consequence of orders made by Judge Walker on 3 October 2013 which were amended pursuant to the slip rule some time later, but not as a matter of substance, following the handing down of a written judgment of some 64 pages after a three-day hearing on 7, 8 and 9 August 2013. 

2. Judge Walker is unavailable to hear this stay application today as she is overseas, and thus I am hearing it in her absence.

3. Her Honour’s orders changed X’s living arrangements from living at the home of and being in the significant care of her paternal grandparents at (omitted) where she has lived for practically her whole life, to the home of and significant care of her maternal aunt who lives in a unit in Sydney.

4. Further Her Honour made orders that the child was to have no contact with the grandmother for three months to settle into the new environment with the aunt. This particular decision was one of the two alternate recommendations made by Ms B in the family report prepared for and used at the hearing dated 24 April 2013.

5. I have to say at the outset, X’s life at her young age of four is one of tragedy. Her mother died when she was aged six months. She went to live with her dad, he went to live back in (omitted) with his family, and she has since that time been surrounded by her paternal family, her grandparents, various aunts, uncles, cousins and the like, with her dad and paternal family caring for her for in a manner that Ms F, the ICL said was a sort of a tribal fashion. This is no criticism, merely descriptive of the way this child was cared for and how the paternal family dealt with this tragedy for this child.

6. To compound the tragedy, X’s father died about 12 months ago, and she has lived primarily with her grandmother since that time and her extended paternal family have rallied around her - her aunts, uncles, various cousins and the like, and have played a significant role in her day-to-day care. X has spent regular time with her aunt, about four days every two-and-a-half weeks, which is by agreement. Interim orders made early last year provided for effectively one week each eight weeks, but the parties changed that arrangement to suit the child.

7. Her Honour’s decision to place X in her aunt’s care has been appealed by the grandmother, and the stay has been filed as a consequence of that appeal. The appeal was filed on 11 October 2013 together with an application and an affidavit in support of the stay. 

8. The evidence I read for the stay was as follows:

   a)Her Honour’s judgment delivered 3 October 2013 and the orders made.

   b)The family report prepared for the trial by Ms B dated 24 April 2013.

   c)The affidavit and application for a stay filed by the paternal grandmother.

   d)The notice of the grounds of appeal.

   e)Written submissions by Mr Dura who represented the maternal aunt and uncle in this matter.

   f)Applicant’s Exhibit 1. An email from the appeals registrar indicating an appeal was possible in this matter on 13 November 2013.

   g)Applicant’s Exhibit 2. A series of emails I read onto the record from Ms A to the appeals registrar which indicate that this matter would be heard by the Full Court on 13 November 2013 subject to the appeal books being filed in accordance with the timetable, which I accept no one knows what it is at this time. 

9. I listened to submissions from Ms A as agent who appeared or the applicants and Mr Dura for the respondents and Ms F for the Independent Children’s Lawyer. It is accepted by me and everyone at the bar table that the grandmother has ordered a transcript of these proceedings, and she will use her best endeavours to have the appeal heard on 13 November 2013, but none of these matters can be guaranteed. I accept that the grandmother is bona fides in her endeavours to that effect.

10. A stay of any order is subject to well-settled law, and is set out clearly in the matter of Aldridge & Keaton [2009] FamCAFC 106 amongst other myriad of decisions. This application is a discretionary one and should be determined on its merits. This is what the case law tells me. The relevant principles for me to look at include:

    a)The onus to establish a proper basis for the stay is on the applicant for the stay.

    b)One does not have to establish special or exceptional circumstances.

    c)A person who has obtained a judgment is entitled to the benefit of that judgment.

    d)A person who obtained a judgment is entitled to presume the judgment is correct.

    e)The mere filing of the appeal is insufficient to grant a stay, and hence the application in a case. 

    f)Assessing the bona fides of the person appealing.

    g)A stay may be granted on terms that are fair and the Court weighs a balance of convenience.

    h)Weighing the risks that an appeal may be rendered nugatory if a stay is not granted. This is a substantial factor in determining whether it would be appropriate to grant a stay.

    i)Some preliminary assessment of the strength of the proposed appeal, whether there’s an arguable case.

    j)The desirability of limiting the frequency of any change in a child’s living arrangements.

    k)The period of time in which the appeal can be heard and whether the existing arrangements are satisfactory which may support the granting of a stay.

    l)The best interests of the child are a significant consideration and to add my words not the primary or overwhelming consideration.

11. Addressing those matters as best I can, all at the bar table, including me, accept that this appeal has been filed bona fides; there is no malfeasance or tactical or other reason to file the appeal. That is clear when one reads Ms B’s report at paragraphs 57 where she says:

    Understandably this notion, the notion being X living with her maternal aunt and uncle, will be very distressing to the Hande family as they feel the love and protection they offer X in their extended family is more important than any other factor.

12. I cannot cavil with this opinion and accept it is what the grandparents believe and secondly at paragraph 60:

    This option, that is, the option of X moving to the home of her aunt and uncle would create a sense of outrage and distress for the Hande family.

13. I accept this is a bona fides appeal if for no other reason than that Ms B put forward the difficult consequences for the grandparents if the Court made the orders it did, namely X living with her aunt.

14. The first issue is that the aunt who obtained this judgment is entitled to its benefit and to presume it is correct, and that the onus is on the grandparents to establish that there is a proper basis for the stay.

15. Going now to the matter of rendering the appeal nugatory, Ms A, forcefully and well put to me that if I did not grant a stay of the orders, that is, X moving to her aunt’s care forthwith, then the appeal would be rendered nugatory. I do not accept that submission.

16. The fact is that it is now possible, if not highly likely that the appeal will be heard in four weeks time on 13 November 2013.

17. Very little will change for the child in those four weeks if she lives with the aunt. It is a period of four weeks not months or years. The Full Court could, at the hearing of the appeal, determine on that day X should return to her grandmother’s care pending a rehearing to another Judge. Those are all options and no one can say what will happen.

18. If the Full Court determines the appeal is successful, those options are available to it, and the child could be returned to her grandmother after this four-week period of time. I do not accept on the evidence before me that a period of four weeks with her aunt with whom she has a close and attached relationship as set out in the family report and as found by Her Honour, even if not seeing her grandmother, would create such a situation in the child’s functioning that she would be in some way permanently impaired or further damaged on a permanent basis or that this would impact on her behaviour on a permanent or ongoing basis and not permit her to  be returned to her grandmother.

19. I accept there may be some sense of loss, grief and difficulty if X returns to her grandmother after a 4 week absence and there would be some settling in. However, there is nothing before me, either in the report that was prepared for the first hearing, in Her Honour’s judgment or the evidence today that in any way suggests this child would be in any way significantly harmed on a permanent basis for a four-week period of time with her aunt and uncle. Thus I do not see the appeal would be rendered nugatory from the grandparent’s point of view. 

20. The real concern I have is the impact upon the child of even a short-term four-week period of time in her aunt’s care, because as Ms A said and as the Independent Children’s Lawyer put forward, this will be a significant change. There is a vast difference to living in the country with your grandmother, aunts and uncles and living with your Aunt in the city. However this is not a factor that would render the appeal nugatory. It is a different issue as I see it. I accept there will be an impact upon her, because this is a significant and large change for a young child to undergo. 

21. The four-week period could be regarded as a holiday. It is a matter for the aunt to work out how to deal with it.

22. The effect on the child of this change is a matter for consideration by me. That was a real concern for the Independent Children’s Lawyer in this stay application, that is, the desirability of limiting the frequency of any change in a child’s living arrangements. This was the pivotal point, of the Independent Children’s Lawyer’s reasons for why I ought to grant the stay. Her position was that if the Full Court determined that the appeal was not successful, she would then go to her aunt in four weeks, and if the Full Court determined the appeal was successful she would be with her grandmother and the child would not go from the grandmother to the aunt and then back again which is a possibility. Thus the stay would limit the change for the child. 

23. The impact upon X of living with her aunt and uncle for four weeks is unknown. However, Her Honour has produced a judgment which has said it is an order in her best interest for this change to occur, so there are clearly positives in the family report as well as in Her Honour’s judgment for the child living with the aunt, be it short-term or a long-term basis, and I see nothing before me today to differentiate between the situation now or as it was at the hearing.

24. It is interesting to note that the impact of change upon the child of changed living arrangements was at the very heart of Her Honour’s decision. At paragraph 235 Her Honour found this:

    It was significant in the family consultant’s evidence that she referred to the fact that X was not quite four years of age and that the window of time when children developed attachments which they can rely on in their functioning for the rest of their lives generally closed around X’s present age.

25. X is now 4 years of age and is about six weeks older now than she was then. This window of time may be even closing further:

    Her evidence too was that as X became older she might feel the loss of her local community more keenly.  This evidence was not challenged, neither was the family consultant shaken in her evidence about her assessment that X had already suffered some adverse impact on her functioning because of the disruption to her life.

26. None of the adults who care for her now can be blamed, it’s just a consequence of how things have panned out for X. When I read Her Honour’s decision at that paragraph and Her Honour’s finding together with Ms B’s report at paragraphs 55:

    Given the history of dislocation and disruption of X’s attachment to others and her presentation and interaction with others at this assessment, that is, wanting an unknown man to watch television with her and calling him father or something of that nature, but a connection with someone she had never met, It is difficult to make her attachments to others the defining factor because this is already such a damaged element of X’s functioning because of these tragedies she has had.  To ensure the best outcome, the best possible outcome for X, one is then forced to consider parental capacity as a very significant factor in order for X to have the best possible chance of fulfilling her potential in spite of her early losses.

27. Paragraph 56: 

    Bearing unforeseen losses, such as a breakdown in her relationship between her aunt and her husband, placing X in her maternal aunt’s household would avoid building a predictable loss into X’s life such as that which does exist in her paternal grandparent’s household because of their relatively advanced age.  This, on balance, appears to be the most significant factor when weighing up the best option for X.  If it is at all possible for X to repair the way she relates to significant others, that is placing her in her aunt’s care, may offer her the best opportunity to do that so she is able to form a primary and enduring attachment to a significant carer.  There may be notable, positive long term outcomes for X if this occurs.

28. This phrase window of time was not referred to in a family report, but was in the oral evidence. However it is all part of Ms B’s premise of giving the child the opportunity to form and to use her words “an enduring attachment to a significant carer” who Ms B said should be the maternal aunt and who Her Honour found should be the maternal aunt.

29. The window of time cannot be quantified as was properly put by the Independent Children's Lawyer and Ms A, it was not quantified at the hearing and I do not know what it is. I do not know that anybody could quantify it, but six weeks ago this matter was heard and Her Honour found then in her judgment the widow of time was fast approaching the closure time. It is now six weeks on from that.

30. It may well be the window of opportunity is fast coming up. I do not know, but if it is, and if I grant the stay and this child does not immediately begin the opportunity of forming an enduring, long term attachment to a significant carer which for the family consultant and Her Honour was her aunt then I may prevent the process occurring at a time where it needs to occur and the window may be closed forever by the time the Full Court hears the matter in another four weeks.

31. If I grant the stay the appeal is successful and the Full Court remits the matter for re-hearing the window may be closed as all agree a re-hearing date is unknown.

32. It may be the window of time for X to start this process will continue for some time. I do not know. It may continue for some time after X’s fourth birthday it may be fast closing. However, this was a significant factor in Her Honour’s decision to change the child’s primary place of residence to her aunt forthwith due to the closing of the time for the child to be able to form a secure attachment to a primary carer of an enduring nature.

33. On the other side of the coin, if I do not grant the stay and in four weeks the Full Court determines the appeal is successful and that the child should return to the grandmother, I have no evidence of any significant harm to the child or of closing off of a window of time in that event. I know it may be an upsetting period of time for X because she has changed residences, has been away from her grandmother and family for four weeks, yet there is nothing in the family report that causes me to say the child will be significantly harmed. There is no evidence of this harm that has been put before me today. The harm is the consequence of her having spent four weeks with her aunt in the absence of her grandmother. That is as high as I can take it.

34. I accept that the child, upon coming back to her grandmother, might be unsettled and take some time to settle down, but any long term or other detrimental effect - I have no evidence of that.

35. It is certainly desirable and proper that the Court limit changes to a child’s living arrangements. However, in this particular matter and every matter is dealt with on its own particular facts and circumstances, the consequences of granting a stay may mean I render nugatory the Full Court’s capacity or a new trial judge’s capacity to make a decision to place the child with the maternal aunt because the window of opportunity for her to form that secure and enduring attachment has closed by the time of the hearing and may have closed forever and thus that option may be lost by the time the Full Court hears the matter or a new trial Judge. The granting of the stay is what could render the appeal nugatory in that it may limit the capacity of the Full Court or a new trial judge to make all the currently available orders.

36. There is no such risk if I refuse the stay and permit Her Honour’s orders to continue. The grandmother’s appeal is not rendered nugatory at all, but on the other side of the coin, there could be a consequence of the Full Court or a trial judge being hampered in making this decision, the child returns to the aunt because the window of opportunity may have closed. This is the important factor that I have determined in this matter the consequence of which may have a negative impact upon the child.

37. According to Ms B, it would have a negative impact upon the child’s functioning and capacity to form attachments and relations in the future if she does not now have the opportunity to form a secure and enduring attachment to an adult.

38. The assessment of the merits of the appeal. This was a comprehensive decision by Her Honour and there is no challenge to any facts Her Honour found or the law as she applied it.

39. The challenge is, as Mr Dura said, on the weight and balance Her Honour found on the facts which was, as I read Her Honour’s judgment, that repairing the way X relates to others required avoiding building in another predictable loss into X’s life because of her grandparent’s age and that giving X now an opportunity to form a primary and enduring significant attachment to a carer outweighed the clear and obvious impacts upon the child, the anxiety she will suffer and consequences for her in moving from the full time care of her grandmother to her aunt. That is how I see the balance of Her Honour’s decision. That is what she weighed up, that is what she found favour on.

1. Thus, this is, as Mr Dura said and everybody agrees, a challenge to a discretionary judgment and on well-established principles and case law, such as the House v The King (1936) 55 CLR 499, Gronow v Gronow (1979) 144 CLR 513, are said to be difficult to overturn. However, the Full Court of the Family Court does overturn such decisions and I could not accept Mr Dura’s submission that the appeal had no prospect of success. It does. Having said so, I make this comment.

2. Her Honour’s decision is fulsome, both as to fact and law.

3. It’s premise was clearly understood by me who had no knowledge of this matter whatsoever and set out, in great detail, the facts, the law and the conclusions she reached on those facts and law and what had tipped the balance in favour of the decision she proposed to make, being what she regarded as a decision in X’s best interests.

4. The short time that the appeal can more likely than not be heard, if the grandmother is able to do all she says she can, is a factor which can support the granting or not granting of a stay. It goes both ways.

5. However, granting the stay may prevent the Full Court or the judge rehearing this matter from being able to place the child with the maternal aunt because the window of opportunity for X to form a secure and enduring attachment with the primary carer may well be closed by the time such matters are dealt with and I find for this reason that granting a stay would not be an order in this child’s best interests and, indeed, would be an order against her best interest and, as such, I dismiss the application for a stay.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date:  22 October 2013