Hansford and Phillips (No.4)

[2019] FCCA 1379

FEDERAL CIRCUIT COURT OF AUSTRALIA

HANSFORD & PHILLIPS (No.4) [2019] FCCA 1379

Catchwords:
FAMILY LAW – Stay application pending appeal – orders reducing time spent – whether a s 11F report should be ordered before a Rice & Asplund hearing – consideration of principles in Hart & Sellwood – consideration of principles in Aldridge & Keaton.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Cases cited:

Hadkinson v Hadkinson [1952] 2 All ER 567

Rice & Asplund (1978) 6 Fam LR 570

Goode v Goode (2006) 206 FLR 212
Aldridge v Keaton (2009) 235 FLR 450
Hart & Sellwood (2016) FamCAFC 254

Applicant: MS HANSFORD

Respondent: MR PHILLIPS

File Number: ADC 4008 of 2013

Judgment of: Judge Young

Hearing date: 4 April 2019

Date of Last Submission: 4 April 2019

Delivered at: Darwin

Delivered on: 4 April 2019

REPRESENTATION

Counsel for the Applicant: Ms Abbott

Solicitors for the Applicant: D’Angelo Kavanagh

Counsel for the Respondent: Ms Dickson

Solicitors for the Respondent: Jacqui Ion Lawyers Pty Ltd

ORDERS

1. That order 4 of the orders made 28 February 2019 be stayed pending appeal.

2. That the application for a stay of orders 1, 2 and 3 of the orders made 28 February 2019 be dismissed.

3. The costs of this application be reserved to the appeal court.

IT IS NOTED that publication of this judgment under the pseudonym Hansford & Phillips (No.4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADC 4008 of 2013

MS HANSFORD

Applicant

And

MR PHILLIPS

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for a stay pending appeal. It concerns two children, [X] and [Y], who are 15 and 11 years old respectively. The proceeding is a long-running one. It began in 2015 when Judge Hughes made orders in Canberra permitting the mother to relocate to Adelaide and orders for the children to live with her in Adelaide but if the father relocated to Adelaide, orders for equal time.  The father relocated to Adelaide shortly after and for the past three to three and a half years the children have been living with their mother and father on an equal time weekly basis.

3. Proceedings before me commenced in September 2017 when the mother filed an initiating application seeking variation of the parenting orders for the children to live with her. I dismissed that application summarily in November 2017 after considering the principles in Rice & Asplund and I was satisfied her application had no merit.

4. The matter came back before me on 20 November 2018 with the father’s application in a case seeking the delivery up of [Y] and, in the alternative, a recovery order. The father’s affidavit filed on the same date referred to [Y] having dislocated or injured her knee while engaged in sports and it was apparent that the issue in dispute at that time was that the mother was arguing that [Y] could not handle or easily climb the stairs at the father’s home and needed help with toileting and showering and her mother was the best person to do that. The father made it clear that he disputed those assertions and he believed that there was no reason why [Y] could not continue to spend equal time with him.

5. On 23 November the father filed a further affidavit canvassing the same issues. On 29 November the mother filed a response seeking suspension of the time orders regarding [Y] and proposed that [Y] spend time with the father three times a week for two hours at a stretch at the mother’s home. On 29 November 2018 the mother filed an affidavit outlining, in length and detail, her allegations about [Y]’s reluctance to spend time at the father’s home while convalescing.

6. On 12 February 2019 the father filed an amended application in a case where he sought the delivery up of [X] as well as [Y] and in the alternative sought a recovery order for both children, that is, for children who were then 11 and 15 years old. The father’s affidavit filed on the same day claimed that [Y] was well enough to resume spending time with him.

7. In that affidavit the father included the text from an SMS message dated 12 December 2018 from [Y] saying, basically, that she did not want to go to her father’s because it was just too difficult for her because of her injury, along with some other comments about her affection for her father and thanking him for her concern. It was, on the face of it, a mature and thoughtful message. The father apparently responded via solicitor’s letters suggesting that that text was not genuine, in other words, that it had been prepared by the mother.

8. The father’s solicitor’s letter was followed by an SMS or an email from [X], the 15 year old, to the father upbraiding him for doubting that [Y]’s message was genuine. [X] said in a unique 15 year old style that he was wrong in his suspicions and that [X] had helped [Y] write the message.

9. The father’s affidavit seemed to acknowledge that [Y]’s message may have been genuine. I make no particular finding about the genuineness or otherwise of those message but I interpreted the father’s affidavit as acknowledging the genuineness of both messages, principally because he apologised to [Y] at a later point.

10. On 21 February 2019 there was a further initiating application filed by the mother where she sought orders that the children live with her and spend alternate weekends with the father. Her affidavit in support filed on 21 February asserted, in summary, that the children did not want to spend equal time with the father any more. On the same date a further affidavit was filed by the mother where the mother asserted that both children were refusing to spend overnight time with the father.

11. On 25 February 2019 the mother filed an application in a case seeking a child support reassessment, in effect, to prevent the father claiming the payment of private school fees as part of his contribution to the children. That was also supported by an affidavit. On 27 February there was another application from the father seeking an urgent hearing to dismiss the mother’s initiating application and other ancillary orders. The father’s affidavit filed on 26 February indicated that he was seeking a Hadkinson order preventing the mother filing other applications until earlier orders for costs had been paid, as there were existing costs orders unpaid, and also taking issue with the mother’s allegation about the school fees and child support.

12. The matter came on before me on 28 February 2019 in a duty list in Adelaide when, of course, many other matters are listed and there was limited time to deal with the various applications that were before me. The only application that was technically before me may have been the father’s recovery order. I do not recall precisely what matters were listed then but, certainly, that application was the primary application that saw a listing at short notice in front of me.

13. After a reasonably lengthy hearing in a duty list orders were made on 28 February varying the time the children spent with the father from equal time to time from Friday through to Monday for about half the April school holidays and also orders for a child inclusive 11F conference to ascertain the children’s wishes. The other applications that were outstanding which are identified in the orders of 28 February were adjourned for hearing to 21 May, including a Rice & Asplund hearing on the mother’s initiating application filed on 21 February, the mother’s application filed 25 February about child support and the father’s application in a case filed 27 February seeking a Hadkinson order.

14. After those orders were made the mother on 26 March filed an application in a case seeking suspension of the earlier parenting orders made in 2015 and suspension of the time orders made on 28 February 2019. The effect of her application was to seek an order that the children spend no time with the father. The basis of that, and I understand this is an agreed position, is because at the moment, neither child is spending any time with the father. The father’s case appears to assert that the reason for that is the mother is withholding the children in some way or has manipulated the children and the mother’s case appears to be that the children are expressing strong views of their own that she is unable to overcome.

15. That is certainly the description she offers in her affidavit in support of that application in a case filed on 26 March 2019. In particular, the mother’s affidavit makes allegations that the father or the father’s family have attempted to manipulate the feelings of the children and that has resulted in the children refusing to spend time with the father.

16. The mother’s application in a case filed 26 March 2019 was given a hearing date, after the registry consulted me, on 21 May. In other words, I was not satisfied that there was sufficient urgency about the matter to require it to be listed prior to 21 May.

17. On 28 March, the father filed a further application in a case seeking an urgent hearing of a stay application pending an appeal against the interlocutory orders ordered by me on 28 February and that application was supported by the father’s affidavit which I do not need to canvass at this stage.

18. On 1 April 2019, the mother filed a further affidavit in relation to an incident alleged to have happened at the School R where the children attend some time before 28 February and which was mentioned by me in my reasons for decision on 28 February. That affidavit does not appear relevant to anything I have to decide today and I have no regard to it.  Similarly, on 1 April 2019, the mother filed a response to the father’s application in a case seeking to have it dismissed. I presume that was a response to the stay application.

19. The only matter that is before me at the moment is the father’s application for a stay of the orders made on 28 February. I consider it highly relevant to that stay application, and is what I understand to be the agreed position between the parties today, that the children are not spending any time at all with the father. That is, they are not spending time with the father pursuant to the orders I made on 28 February or any other order. As I have mentioned, the father appears to believe that that is the result of a manipulation by the mother or her family or both whereas the mother asserts that the children are independently refusing to spend time with their father. It is not possible, of course, on an interim hearing such as this to reach any conclusions about that.

20. The orders that are sought to be stayed are all of the orders 1 to 4 made on 28 February.  In summary, they fall into three groups, the first an order providing for the children to spend alternate weekend time with the father rather than equal time, the second, orders 2 and 3, providing for a child inclusive conference in order to ascertain the wishes of the children or the views of the children, and the fourth order was simply adjourning to 21 May the various applications that were before me.

21. The principles to be applied in hearing the stay application are reasonably well understood and both parties did not suggest that any other than the principles set out in the Full Court decision of Aldridge & Keaton should be applied. I was given submissions by both parties about those criteria. There are 10 criteria and I will deal with them in numbered order. In the Full Court decision they are simply dealt with as dot points but it is easier to refer to them numerically.

22. The first concerns the onus:

    To establish a proper basis for a stay rests on the applicant, and there are no special or exceptional circumstances required.

    It was not suggested otherwise by Ms Abbott who appeared for the mother.  The second criterion:

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

    Nor was that in question in this case.  The third criterion:

    A person who has obtained a judgment is entitled to presume a judgment is correct.

    Nor was that challenged, and nor was the fourth criterion challenged:

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

    I consider those matters to be self-explanatory and I do not propose to say anything more about them.  They were not in issue in the circumstances of this application.

23. The fifth criterion is the bona fides of the applicant.  It was not suggested that the applicant was not bona fide in his desire to overturn the decision of 28 February 2019. I am satisfied that the application is brought bona fide in support of an appeal intended to set aside the decision I gave on 28 February 2019 and is for no other reason and is therefore a bona fide one.

24. The sixth criterion is that:

    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.

    The proposition put by the applicant was, essentially, that there may be different factors applying to the different groups of the orders that I have described made on 28 February and it would be appropriate in weighing the balance of convenience to have regard to each of the different factors.

25. It appears to me that considering that one of the orders sought in the appeal is that any rehearing should be remitted to another judge that is particularly relevant to order 4, that is, the hearing of the balance of the applications: the Rice & Asplund hearing, the mother’s application seeking a variation of the child support orders and the father’s application in a case seeking a Hadkinson order. The matters dealt with in order 4 could conveniently be dealt with after an appeal, particularly as the outcome of the appeal might be that some other judge was going to hear the balance of this matter.

26. Order 1 is also something that can be conveniently approached through the prism of criterion 6, the balance of convenience.  It appears to me that in circumstances where the children are not spending any time with the father at the moment and where the orders are of the court are not being complied with, that, in a sense, it does not matter what happens with that because the indications are that no order is going to be complied with.  It was not suggested by Ms Dickson that if I stay that order the children are going to return to spending time equal time with the father in the circumstances.  I am not satisfied that it would be inconvenient to leave that order in place.

27. In relation to the orders 2 and 3 which deal with a child inclusive 11F conference, it appears to me that the real allegations in this case are, by the father, that the children are being manipulated by the mother in a way that does not express their true or genuine wishes or wishes that are in their best interests and, by the mother, that she is powerless to influence or coerce or otherwise have these children spend time with the father. Accordingly, the views of the children and the genuineness of those views, having regard to their maturity, the various matters set out in section 60CC(3)(a), that is, “any views expressed by the child and any factors, such as the child’s maturity or level of understanding, that the court thinks are relevant to the weight it should give to the child’s views”, is a central factor in this case.

28. Of course, there are other factors but that is a central factor and was the central factor that I had regard to in my reasons for decision on 28 February 2019. I consider that it would not necessarily be inconvenient for that order to remain in place for either party because it will result in the views of the children being assessed in accordance with section 60CC(3)(a).

29. Criterion 7, “a weighing of the risks that an appeal may be rendered nugatory if a stay is not granted”, is a substantial factor in determining whether it will be appropriate to grant a stay.  As the appeal is against an interlocutory decision, the result of the father succeeding on his appeal would be that the orders reducing the time the children spend with the father made on 28 February would be reversed and new orders put in place or remitted to me or another judge for reconsideration.  Where the orders are not being complied with in any event and there is no indication that they will be complied with in the near future, I am not satisfied that leaving that order in place renders the appeal nugatory.  It is yet to be seen what will be the effect of further orders, if any.

30. In relation to the order for the child-inclusive conference, if that does go ahead, it may be that that has the effect of rendering an appeal nugatory in relation to that aspect because one aspect of the father’s appeal is that there ought not to have been any order pending the Rice & Asplund hearing.  That is certainly an arguable position and I was referred to and I have had regard to the reasoning of the Full Court in Hart v Sellwood [2016] FamCAFC 254.

31. My interpretation of the Full Court’s approach to the questions of whether orders for section 11F conferences, or family reports for that matter, ought to be made before a Rice & Asplund determination is canvassed in that decision. My interpretation is that ultimately the best interests of the children or child is the overriding consideration and deciding whether to make a section 11F order is also subject to the considerations that underlie the principles in Rice & Asplund, that is, the necessity to exercise caution in permitting further litigation in circumstances where there are existing orders and where further litigation may not be in the best interests of the children. 

32. As I read Hart v Sellwood the Full Court seems to be saying that there needs to be a case by case assessment of whether it is in the best interests of the children to make an order for a conference such as an 11F child-inclusive conference against that background.  In some cases it will be appropriate, in some other cases it will not be appropriate.  In this case where, as I have said, I am satisfied that the wishes of these two children aged 15 and 11 and a half are central to the issues, I consider that any court will have to come to grips with whether or not the wishes of the children as expressed, according to the mother, or not expressed, according to the father, are real or genuine. I think there ought not to be a delay in that aspect of the orders I have made.

33. Although in one sense it may render success on appeal nugatory in relation to that issue, it seems to me really inconceivable that at some point there will not be a necessity for canvassing the views of these children. 

34. The eighth criterion is a preliminary assessment of the strength of the proposed appeal and whether the appellant has an arguable case.  There are four grounds of appeal and I will summarise them as best I can.  The first ground is that I erred in law in the making of the decision on 28 February by paying insufficient regard to the findings of the trial judge in 2015, Judge Hughes, and in particular, the conduct of the mother and/or her family and the risk that, unless the equal time arrangement was maintained, the children’s relationship with the father would be irreparably damaged. 

35. That was certainly a central consideration of Judge Hughes but at the time Judge Hughes made the order the children were approximately 11 or 12 and probably seven or eight and since then the children have spent three years or more in an equal time with both parents.  Whether that was a factor that was given insufficient weight is arguable, but it appears to me that it is far from a ground of overwhelming strength. 

36. Ground 1.2 asserts that I erred in law by failing to or declining to hear the appellant’s preliminary applications for a Hadkinson order and pursuant to Rice & Asplund issues.  While that is certainly the case, I nonetheless dealt with the father’s recovery application in a busy duty list and adjourned those matters to a more convenient date to be heard.  I find it difficult to conclude that that is a strong ground.  Ground 1.3 is that I erred by failing to follow Goode v Goode which requires in an interim hearing that the legislative pathway be followed.  I think there is probably some strength in that, but in circumstances where, as I concluded, the issue of overwhelming importance was whether or not the wishes of the children were genuine, it appears to me that at least in spirit if not letter the legislative pathway was followed but that will be a matter for an appeal court. 

1. Ground 1.4 is the bald assertion that I erred in law by failing to afford the appellant procedural fairness.  There are no particulars given in that ground and, as I pointed out to Ms Dickson, there is authority from the Federal Court in a decision of Reeves J which is often referred to in migration matters - although I do not have the citation or the name of the case in front of me but there is no real question that it is correct - that a bald assertion of a denial of procedural fairness without particulars is not a proper ground of appeal.  I am satisfied that the grounds of appeal are in some respects are at least arguable or may have some merit but others are without merit. 

2. Criterion nine is the desirability of limiting the frequency of any change in a child’s living arrangements.  It appears having regard to the fact that the children are not spending any time with the father at all and their age and the fact that, as I understand it, no recovery order or delivery up order is to be pursued pending appeal, that there will not be any change in the children’s living arrangements whatever happens. 

3. Criterion ten is the period of time in which an appeal can be heard.  I was told that an application has been made for expedition in relation to the appeal but that has not been listed.  There was no evidence before me about when the appeal was likely to be heard, so all I can conclude is that it will be heard at an indeterminate time in the future, possibly many months away. 

4. Criterion 11, the best interests of the child, is a significant consideration.  I am satisfied that it is important that sooner rather than later these children be given the opportunity to express their views, particularly having regard to their ages and what appears to me from the SMS material and the email material between [Y] and [X] and their father, that is, they are children of if not maturity, at least thoughtfulness. There is also material that suggests that [X], the older child, is an intelligent child and is forthright in the expression of her views, particularly in the material that I have referred to in the father’s affidavit where [X] vehemently denied the suggestion that she and [Y] were expressing anything other than a genuine and personal views about matters as they then stood. The views of the children should be heard sooner rather than later.

5. Taking into account all those matters, I propose to stay order 4 of the orders made on 28 February, but I do not propose to stay order 1, 2 or 3.

6. I will reserve the costs of the stay application to the court hearing the appeal. The listing on 21 May is probably pointless now because I have stayed the operation of order 4. 

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 22 May 2019