Harold & Raymond

[2009] FamCA 715

FAMILY COURT OF AUSTRALIA

HAROLD & RAYMOND [2009] FamCA 715

FAMILY LAW – PRACTICE AND PROCEDURE – STAY – Applicant mother seeks a stay of final parenting orders and a variation of those orders pending the hearing of the appeal by the Full Court – Father seeks dismissal of the mother’s application – Application for stay dismissed

Family Law Act 1975 (Cth)

APPLICANT: Ms Harold

RESPONDENT: Mr Raymond

FILE NUMBER: MLF 3001 of 2006

DATE DELIVERED: 31 July 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Austin J

HEARING DATE: 31 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

1. The respondent father is granted leave to rely upon his Response and affidavit in support, both filed on 29 July 2009, in the interim proceedings before the court.

2. The application made by the applicant mother to cross examine the respondent father in the interim proceedings before the court is dismissed.

3. The Application in a Case filed by the applicant mother on 10 July 2009 is dismissed.

4. Order 2 sought by the respondent father in his Response to an Application in a Case filed on 29 July 2009 is dismissed.

5. No order as to costs.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3001 of 2006

MS HAROLD

Applicant

And

MR RAYMOND

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Preliminary application (father’s Response and affidavit)

1. The proceedings before the court this morning are an Application in a Case filed by the applicant mother on 10 July 2009, seeking effectively a stay of orders made in substantive parenting proceedings by Young J on 4 March 2009, and in addition, a variation of those orders, with the stay and the variation to prevail until such time as the mother, Ms Harold’s appeal is determined by the Full Court. 

2. As I said, the Application and the supporting affidavit were filed in this court on 10 July 2009, and today is the first return date of that Application.  Mr Raymond is the respondent to that Application, as the father of the child in issue.  He has filed a Response to an Application in a Case and an affidavit in support of that Response on 29 July 2009. 

3. The Rules required the father, as the respondent, to file his Response and supporting affidavit not less than seven days in advance of the return date of the application, namely, in this instance, by 24 July 2009.  With those documents having been filed on 29 July, the filing was five days late.  The mother informs the court this morning that she objects to the father being permitted to rely upon that Response and affidavit in support in rebuttal of her Application and her affidavit in support of that Application. 

4. Having read the material contained within the respondent’s Response and affidavit, I consider that the material is germane to the issues that will be agitated between the parties today and the determination of the applicant mother’s Application. 

5. I reject the application by the mother for the rejection by the court of the responsive material, filed by the respondent father, and I permit the father to rely upon both the Response and his affidavit, in the context of the determination of interim proceedings today.  Having made that decision, I should say for abundant caution, that, in my view, having regard to the material and the submissions made to me from the bar table, the mother will not be prejudiced by the material that is filed and relied upon by the respondent.

Preliminary application (cross examination of the father)

1. These are interim proceedings between the parents of a young child, S.  The applicant mother is applying, today, for a stay of final parenting orders, made by Young J on 4 March 2009, that pertain to the child.  The orders made on that day by Young J are the subject of a substantive appeal by the mother, which appeal is still outstanding.  The immediate application before the court today is an interlocutory application for a stay of Young J’s orders and the variation of those orders pending the hearing of the appeal.  Both of the parties have filed an affidavit in the context of these interlocutory proceedings.  The applicant mother has sought leave from the court to be permitted to cross-examine the respondent father on the material contained within his affidavit.

2. As I have explained to the parties, the Rules provide that in interlocutory proceedings such as these, no party is permitted to cross-examine a witness who has deposed to an affidavit, unless they are able to demonstrate the existence of exceptional circumstances.  The applicant mother has attempted to persuade me of the existence of exceptional circumstances and, in support of her application, she has indicated to me that she would like to cross-examine the father on a number of matters, which she contends would be influential in the outcome of her application. 

3. The matters to which the applicant mother has referred are: 

   ·    comments made by the father in his affidavit, to the effect that he has a belief that the child is doing well;

   ·     a query that she has in relation to an assertion by the father about the constituent members of the child’s family;  and further,

   ·    the mother wants to raise with the father correspondence which has apparently transpired between them since the time the mother filed her affidavit some weeks ago, on 10 July 2009. 

4. Having heard and considered the submissions of the mother, I am not satisfied of the existence of exceptional circumstances and I will not permit her to cross-examine the father.  However, she has indicated that she has some material in the nature of emails which I would be prepared to permit her to tender in evidence should she feel that they carry with them any probative value.

5. The mother has, furthermore, submitted to me that she has some text messages saved on her phone, being messages passing between her and the father since her affidavit of 10 July.  Those messages are still retained on the phone in an electronic format, not by way of hard copy, and in the circumstances, I would be prepared to grant leave to the mother to give oral evidence on oath attesting to the contents of those text messages should she feel that they have probative value in the overall determination of these interlocutory proceedings.  I so order.

Interim application for stay and variation

1. The application before the court for determination today is an Application in a Case filed by the applicant mother on 10 July 2009.  The respondent father meets that application with a Response to an Application in a Case filed on 29 July 2009.  The application of the mother seeks a stay of orders made by Young J in this court on 4 March 2009 of a parenting nature.  The Response filed by the respondent father merely seeks dismissal of the mother’s Application.

2. By way of background, the parties began cohabitation in the year 1999 and they finally separated in or about December 2003.  During the course of their relationship a child was born to the relationship, namely S, in November 2002.  The child is now aged six years of age.  Some time after the separation on 20 October 2006 the father filed an Application seeking parenting orders concerning S.  On 22 November 2006 the mother filed a Response similarly seeking parenting orders concerning the child.

3. Their dispute was resolved on an interim basis by orders being made in this court on 22 October 2007.  Those orders were superseded shortly thereafter by consent orders reached between the parties, ratified by the court on 30 November 2007.  Those orders prevailed until the final hearing between the parties that took place in this court before Young J across several days in February 2009.  As a consequence of that hearing, Young J delivered his reasons and final parenting orders on 4 March 2009.

4. Later that month, on 30 March 2009, the mother filed an appeal against those orders and that appeal remains pending.  In June of this year the appeal, which was originally fixed for 15 July 2009, had that hearing date vacated and indications are that the appeal will now be heard by the Full Court in about October of this year. 

5. On 10 July 2009 the mother filed an application for a stay of Young Js orders and a supplementary application for orders which would provide a varied parenting regime between the time of the hearing of this application and the hearing of the appeal.  As I have indicated, it was that application filed by the mother on 10 July 2009 that is before the court for determination today.

6. What is at stake is the question as to whether the orders of Young J made on 4 March 2009 ought be stayed and, in addition, the mother’s proposal that the varied parenting arrangements be implemented which entail, from the face of the documents, a proposal which is slightly different from both the orders imposed by Young J on 4 March 2009, and the consent orders that existed before those orders from 30 November 2007.

7. I should record at this point that the Independent Children's Lawyer has not participated in these interlocutory proceedings.  An Independent Children's Lawyer was appointed for the hearing of the final proceedings in February of this year, but the Independent Children's Lawyer recently filed a Notice of Ceasing to Act in the appeal.  That is verified by documents admitted into evidence and marked Exhibit M1 by the mother, indicating that the Independent Children's Lawyer intends taking no further part in these proceedings and that that intention has prevailed since the time of the filing of that document in this registry on 4 June 2009.  Consequently these interim proceedings have been contested bilaterally between the parents only.

8. The evidence relied upon by the mother for the purposes of these interim proceedings comprises:  firstly, her affidavit filed on 10 July 2009 which includes a number of annexures including an annexed affidavit sworn by a general practitioner;  and, secondly, a series of documents which have been admitted into evidence and marked Exhibits M1 to M8 inclusive. 

9. The evidence relied upon by the father is that contained within his affidavit filed on 29 July 2009. 

10. I turn firstly to the stay application.  Authorities have established the principles to be applied in the adjudication of applications for the stay of orders pending the hearing of an appeal.  Criteria which will be required to be considered by the court include:  the likely delay between the time of the application for the stay and the hearing of the appeal;  the merits of the appeal;  any delay occasioned by the applicant in seeking the stay;  the hardship that might be caused to the parties either by reason of the grant or refusal of this stay application;  whether the appeal will be rendered nugatory as a consequence of no stay being imposed;  and the interests of the child when the stay concerns orders of a parenting nature.

11. I will turn to consider those criteria individually.  Firstly, the likely delay until the appeal is determined.  As I have already indicated, the appeal was notionally listed for hearing before the Full Court on 15 July 2009.  That hearing date was vacated in June of 2009.  The father has asserted in his affidavit evidence that the vacation of that hearing date was as a consequence of the fault of the mother. 

12. In his affidavit at paragraph 7 the father refers to the appeal being vacated as a consequence of the mother failing to file her summary of argument and list of authorities as required by the directions of the Full Court, and furthermore refers to a letter of the court which is annexed to his affidavit and marked BWR1.  That annexure is a letter of the Family Court of Australia dated 30 June 2009 directed to both the mother and the father advising both parties that, despite an earlier letter dated 22 June 2009 and an asserted conversation, in the absence of the summary of argument and listed authorities the hearing date of 15 July 2009 was vacated.

13. The mother does not accept that the appeal date as notionally fixed was vacated as a consequence of any fault on her part.  She has tendered two documents as Exhibit M5, being an Application in an Appeal and a supporting affidavit filed by her on 2 June 2009, in which she makes application for the provision to her of a transcript of the evidence arising out of the trial at first instance in February 2009 before Young J which she would be then able to utilise for the purposes of properly preparing and prosecuting her appeal. 

14. That Application which was filed on 2 June was given a return date of 15 July 2009.  On the state of the evidence, I am unable to determine what happened when that matter came before the court on 15 July, and as I have already indicated a letter sent to the parties on 30 June 2009 had already vacated that hearing date before the Full Court.

15. As things stand, the evidence indicates that the appeal will now be heard in the sittings of the Full Court in Melbourne in the week commencing either 5 or 13 October 2009, subject to the parties complying with directions by 4 September 2009.  That is evident from a letter written to the mother by the Family Court of Australia dated 20 July 2009, which is in evidence and marked Exhibit M4 as a consequence of the tender made by the mother. 

16. Drawing those considerations together, what I conclude is that there is a likelihood that the appeal will be heard in October of this year.  That is a little over two months away.  That accords with the evidence of the mother who says at paragraph 6(d) of her affidavit that she expects the appeal to be listed for hearing in October 2009. 

17. In respect of the merits of the appeal, the mother asserts in paragraph 10 of her affidavit that there are proper grounds of appeal with sufficient merit to warrant a stay of orders pending the appeal outcome.  That of course self-evidently is a statement of opinion rather than a statement of fact.  The Notice of Appeal which has been filed by the mother is an exhibit to the mother’s affidavit bearing exhibit number JTH1. 

18. I have perused the grounds of appeal set out in part E of the Notice of Appeal and the orders sought in the appeal, set out in part F of that document, and I am bound to say, with no disrespect to the applicant mother, that none of the grounds of appeal appear on their face to be particularly promising. 

19. Of course that is a preliminary view I express at this interlocutory stage simply as a consequence of a cursory view of the appeal and not as a consequence of any comprehensive evaluation of the material that will be put before the Full Court.  At this stage, all that is required by a judicial officer in my position is a cursory consideration and not a comprehensive evaluation. 

20. It appears from the evidence before me that the mother’s dissatisfaction with the outcome of the hearing earlier this year before Young J is really limited to a number of discrete issues, namely the issue of parental responsibility, and in particular whether that should be allocated solely in her favour rather than an arrangement of equal shared parental responsibility between both parents, secondly, the prospect of cutting back the time that the child would spend with his father by one night per fortnight, and thirdly, the prospect of the child changing his school enrolment. 

21. In relation to the criteria as to the delay in the institution of the application for a stay, the mother says in paragraph 6 of her affidavit that there were a number of reasons for that delay.  It should be observed that the orders which are the subject of appeal were made on 4 March 2009 and the Application now under consideration for a stay of those orders was filed on 10 July 2009.  The delay is therefore, in round figures, four months and those substantive parenting orders have been in force for that period of time. 

22. As I have already indicated, the appeal is expected to be heard in the next couple of months and whilst I am not in any way critical of the delay by the mother in the time taken to institute this application, the force of the stay application has to be considered in the context of the time that has elapsed since the substantive orders became operable and the time when the appeal is likely to be heard. 

23. In relation to the question of hardship that could be caused by either a grant or a refusal of the stay, at paragraphs 15-16 of her affidavit the mother observes that the detriment to the child’s welfare would be greater than the detriment to the respondent father should the orders not be stayed.  That statement or expression of opinion goes to the issue of the best interests of the child which I will address shortly. 

24. The mother has also asserted in her affidavit at paragraph 9 that the failure of the court to grant her application for stay may render the appeal nugatory.  Again, that is an expression of opinion rather than a statement of fact.  The way in which the mother has expressed herself in paragraph 9 by use of the word “may” suggests that she is a little uncertain as to whether that is a maintainable proposition.  I simply observe that there is no evidence before me to satisfactorily prove that the appeal would be rendered nugatory if the stay is not granted. 

25. That leaves me to turn to the question of the child’s best interests, which was the point which was agitated with most vigour by the applicant mother in her submissions. 

26. I pause to recognise at this point that the best interests of the child are relevant but not determinative of my decision. This is an application for a stay of orders, not an application for a parenting order under Part VII of the Act.  The authorities, as I understand them, indicate in those circumstances that the best interests of the child are not paramount.  As I have said, they are relevant but not determinative. 

27. It appears to me from the evidence adduced by the mother that her evidence is in reality a collection of opinions and conclusions.  To be even-handed about that observation, it can equally be said that the evidence adduced by the father is really a collection of opinions and conclusions.  I want it to be known by the parties at this point that the expressions of those opinions on the part of both of them are accepted by me to be genuine. 

28. Annexed to the mother’s affidavit, to which I have already referred, is an affidavit sworn by a general practitioner.  That appears, on the face of the material before me, to be the one piece of evidence that could be regarded as in any way objective.  I have had regard to the contents of the affidavit sworn by the general practitioner and his medical certificate, which constitute exhibits marked TL1 and TL2 to the mother’s affidavit, and considered that material carefully. 

29. I have also considered it in the context of what the father tells me in his affidavit at paragraph 13, that he had contacted the general practitioner who swore that affidavit and provided the medical certificate to the mother, and that he did so on 10 June 2009 at 4.00 pm.  He spoke with a doctor and the doctor told him that the medical information he provided was, not as a consequence of him discussing those things with the child, but was in reality material that he based upon the matters reported to him by the mother. 

30. The major grievances that have been agitated in argument on behalf of the mother have been confined to issues of the level of communication between herself and the father over parenting issues and what she regards as an unsatisfactory school environment for the child.  I will deal with each of those issues in seriatim. 

31. As to the issue of communication, the parties have put before me documents which evidence the nature of the communication that has taken place between them. 

1. The conclusion I draw is that the evidence demonstrates frequent, even-tempered and courteous communication between the parties, and to form that conclusion I refer to evidence adduced by the mother in the form of annexure JTH2 to her affidavit, which comprises emails between the parties, exhibit number BWR1 to her affidavit, which comprises a written note and some more emails, Exhibit M3 which she tendered in evidence today, which was another series of emails, a series of text messages which she read out to me from the bar table with the consent of the father, and on the father’s part, a series of emails which formed annexure BWR2 to his affidavit. 

2. That evidence, in my view, demonstrates the opposite of what the mother has contended in these proceedings.  The mother has asserted to me that there is no level, or very little level, of communication between the parties, whereas in fact all of that material does show that the parties do communicate. 

3. There are times of course at which they have not reached agreement on issues of significance, but I am not satisfied on the evidence that the father has been deliberately or inadvertently belligerent in his communications with the mother.

4. In relation to the unsatisfactory school enrolment in the eyes of the mother, that is simply not possible for me to determine authoritatively on the evidence currently available.  However, I am satisfied that the father has given the issue of schooling his genuine consideration in the context of the orders made as to equal shared parental responsibility by Young J on 4 March this year. 

5. It will be apparent from the observations that I have made to this point that the mother has not proved her case for a stay. 

6. I accept that the mother will be disappointed with that result, and the maintenance of the existing orders pending her appeal.  But obviously the stay application must be determined by me on an objective rather than subjective basis, and much of the argument that has been put to me by the mother I categorise as subjective rather than objective argument. 

7. Since I am not prepared to order a stay of the orders, they will continue to prevail and that naturally means that there will be no room to accede to the mother’s subsidiary application to vary the parenting arrangements. 

8. That necessarily means that the father has been successful with Order 1 proposed in his Response filed on 29 July 2009.  That leaves me to consider the issue of Order 2 proposed by the father in that Response, which is an application that the mother pay the costs of the father. 

9. I dismiss the mother’s Application filed on 10 July 2009.

10. I dismiss Order number 2 sought by the respondent in the Response filed on 29 July 2009, noting that the father no longer presses for that order. 

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin

Associate: 

Date:  31 August 2009