HEATON & HEATON (STAY APPLICATION)
[2014] FamCA 840
•1 October 2014
FAMILY COURT OF AUSTRALIA
| HEATON & HEATON (STAY APPLICATION) | [2014] FamCA 840 |
| FAMILY LAW – CHILDREN – Stay application – relocation of the mother – where children’s care arrangements went from equal shared time arrangement to a live with and spend time with arrangement – where it was found that the previous orders were unsatisfactory for the children – where appeal is not expected to be heard for eighteen months – not a full analysis of the grounds of appeal, only a judicial impression – best interests of the children |
| Aldridge & Keaton [2009] FamCAFC 106 | ||
| APPLICANT: | Mr Heaton | |
| RESPONDENT: | Ms Brown (formerly Heaton) |
| FILE NUMBER: | NCC | 1835 | of | 2010 |
| DATE DELIVERED: | 1 October 2014 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 30 September 2014 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr Dunn, Watts McCray Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Cummings SC Mr Graham |
| SOLICITOR FOR THE RESPONDENT: | Tony & Cox Lawyers |
Orders
The Application in a case filed on 15 September 2014 seeking a stay of the Orders made on 5 September 2014 is dismissed.
The mother’s application for costs in this stay application is reserved to a date to be fixed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Heaton & Heaton (stay application) 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 PARRAMATTA |
FILE NUMBER: NCC 1835 of 2010
| Mr Heaton |
Applicant
And
| Ms Brown (formerly Heaton) |
Respondent
REASONS FOR JUDGMENT
Introduction
In an Application in a Case filed on 15 September 2014, the father, Mr Heaton seeks that certain orders made on 5 September 2014 relating to the parties’ two children, be stayed pending the hearing of an appeal. The orders sought to be stayed discharge all previous parenting orders and provide for the children to live with the mother and to spend time with the father.
These orders brought about a significant change in the living arrangements of the parties’ children, E who is 10, and J who is 9. Prior to the 5 September orders the children had been living in a “week about” arrangement in Sydney for a number of years. Under the 5 September Orders the children live with the mother in Town P on the Mid North Coast of NSW and spend substantial and significant time with their father in Sydney and Town P.
Immediately following the delivery of the judgment, the orders were implemented. The children’s school in Sydney was notified that the children would be commencing at a new school in Town P at the start of term 4, arrangements were made for the children to be enrolled in a new school and extracurricular activities in Town P and the children spent time with their father in the holiday period as provided by those orders.
The question for me to determine is whether these parenting orders should be stayed pending appeal as sought by the father, or should continue as sought by the mother.
Background
The parties met in Town P in 1997 and married there in 2000. Following their marriage they moved to Sydney. The parties separated in about October 2009 and initially continued living and caring for the children in the family home.
The mother sought orders in earlier proceedings which she commenced in July 2010 in the Federal Magistrates Court (as it then was) permitting her to relocate with the children to Town P. The father sought orders that the then current arrangement, being “week about” in Sydney continue.
Interim parenting orders described as a “nesting order” were made by Federal Magistrate Dunkley (as he then was) in July 2011 under which the children were to live in the former matrimonial home and each parent would move into and live with the children on a “week about” basis.
Final orders were made in March 2012 in respect of both the parenting and property proceedings. Under those orders the mother was required to move out of the home by July 2012 but the “week about” arrangement continued. Since July 2012, up until the time of the September 2014 judgment, on the week in which the children lived with their father they remained living in their family home, and during the week that they were cared for by their mother, they lived in a serviced apartment a short distance from their family home. The children continued to attend the same school.
The mother successfully appealed against the parenting orders made by Federal Magistrate Dunkley. The matter was remitted for rehearing to the Federal Circuit Court and in October 2012 was transferred to the Family Court.
The second parenting proceedings were heard over three days in June 2014 and the judgment was delivered on 5 September 2014.
Following the delivery of the orders on 5 September 2014 the mother travelled from Town P and took the children into her care on Sunday, 7 September 2014, in accordance with the previous parenting orders. The school week commencing on Monday 15 September, was the last week of term 3.
On 8 September the mother sent an email to the father (which is the parents’ usual mode of communication) seeking to discuss how the parties were to tell the children of the changes and their future schooling arrangements. The father responded the following day saying that he was considering his right of appeal, as the mother had done so previously but did not say that he was appealing the decision. On 8 September, the mother also made enquiries and arrangements concerning the children’s enrolment in a local primary school in Town P for term 4, which was due to commence after a two week holiday.
The mother responded to the father’s email on 9 September and restated that in her view, the children needed to be told about the orders, and that if she did not hear from the father by the end of the day she would tell them herself. The mother did not hear from the father and informed the children that day of the outcome of the matter and that they were going to move to Town P with her. The mother says that the children showed a positive reaction to the news of their moving.
On Wednesday 10 September 2014, the children told their friends at school that they were moving to Town P. On the same day, the mother informed the children’s school that they were moving to Town P with her, pursuant to the court orders and that their last day at school would be the following Tuesday, 16 September.
On 11 September 2014 the father filed his Notice of Appeal, which was served on the mother’s solicitors the following day.
On Friday 12 September the mother was advised that there were no vacancies at any of the three Catholic Primary schools in Town P commencing in term 4 2014. The mother placed the children’s names down for consideration to start in 2015. The mother received a letter from the Catholic schools administration on 15 September confirming this advice.
On 15 September 2014 the father filed his application for a stay.
The mother travelled with the children after school on Tuesday 16 September 2014 to Town P. On Wednesday 17 September the mother and the children attended an interview with the Deputy Principal at B Primary School in Town P. The mother also enrolled the children in extracurricular activities in Town P. On this day the mother’s solicitors were served with unsealed copies of the stay application.
On Friday 19 September, the mother drove the children to the changeover location under the previous and current orders, where the father collected the children to commence the start of the father’s time with the children over the school holidays. The time the father is spending with the children in the current school holiday period is in accordance with the 5 September orders.
The children have an expectation that at the end of the time with their father during the holidays, they will commence living with their mother and attending school in Town P. This is due to occur the week following the hearing of this application.
The Law to be Applied & Discussion
The law as to the general principles applicable to a stay pending appeal is well settled.
In Cape & Cape[1] the Full Court considered orders permitting the mother to relocate to Germany, and the refusal to stay the relocation orders pending the appeal. The Full Court referred to the approach taken by the First Instance Judge as accurately relying upon the statement of principles in Tranh & Long (No. 2)[2]. These principles are the same as those referred to by the Full Court in Aldridge &Keaton[3].
[1] [2013] FamCAFC 114
[2] [2008] FamCAFC 194
[3] [2009] FamCAFC 106
The principles from Trahn & Long (No. 2) (supra) or Aldridge & Keaton (supra), which govern the determination of a stay application concerning a child are[4]:-
[4] Ibid at [21]
·the mere filing of an appeal is insufficient to ground a stay;
·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 “special” or “exceptional” circumstances;
·a person who has obtained a judgment is entitled to the benefit of that judgment;
·the person who has obtained a judgment is entitled to presume the judgment is correct;
·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 the 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 a stay for a short period of time; and
·the best interests of the child the subject of the proceedings.
I will now consider the factors relevant in this case.
The bona fides of the applicant
There is no suggestion in this matter that the appeal brought by the father has been made in bad faith or for any improper reason.
Balancing the parties’ competing rights – whether a stay should be granted on terms fair to all parties
It is not submitted by either party that the stay should or could be granted on terms which are fair to each of the parties. The father seeks the stay on the basis of other factors which are dealt with in these Reasons and the mother opposes it similarly on other grounds.
Is there is a risk that the appeal may be rendered nugatory if a stay is not granted?
It is submitted on behalf of the father that if a stay were not granted that his appeal would be rendered nugatory. It is submitted on the behalf of the mother that it is not open to the father to make this argument in these circumstances.
An appeal would only be nugatory if it were futile in the sense that it would be impossible or impracticable to restore the previous “week about” parenting arrangements if the father were successful on his appeal. The father contends that if the stay is not granted and the arrangements under the 5 September orders continue, the children’s relationship with him and the paternal family may be so compromised and the detriment in moving the children again may be such that the arrangements that the father seeks to have restored on appeal would be contraindicated at that time.
In my view, the father is essentially contending that if the stay is not granted his prospects of successfully appealing the orders may be reduced as a new status quo will have been established at the time of the hearing of the appeal. However, the history of this matter itself demonstrates that despite the previous status quo being maintained, that is the equal shared “week about” arrangement, pending the rehearing, the court still found that alternate orders were in the best interests of these children. In a similar way, if there is merit in the appeal it is possible that an appeal court could restore the previous orders. In this case there is no basis to find that it would be impossible or impracticable for an appeal court to make the orders sought by the father. In other words, the father’s appeal would not be futile or nugatory if the stay were not granted.
A preliminary assessment of the strengths of the appeal
There are ten grounds of appeal contained in the father’s Notice of Appeal. Rather than addressing each of them, submissions were made on behalf of the father in relation to three of them in particular, which were suggested as being the father’s strongest grounds.
Counsel for the mother submitted that the appropriate approach to be taken when making an assessment of the strengths of the appeal is that taken in Sheldon & Weir[5] by Justice Ryan. Her Honour adopted the approach to a family law context, which had been taken by Kirby J in Bryant v Commonwealth Bank of Australia[6]. In Bryant his Honour said that “a decision on a stay application should not become an occasion for a detailed analysis of the issues that will arise in the special leave application and, if granted, the appeal”. Instead Kirby J said that the “prospects of success will necessarily involve a matter of judicial impression”.
[5] [2011] FamCA 2
[6] (1996) 134 ALR 460
In this matter, although counsel for the mother submits that the appeal has no prospects of success and lacks merit, my consideration of the proposed grounds are that I could not conclude that there is no merit in them. However, considering the grounds in the context of “my knowledge of the evidence and the analysis of those issues in my reasons”[7], I am of the view that the prospects of success are not high.
[7] Ryan J in Sheldon & Weir [2011] FamCA 2
Many of the grounds of appeal relate to the exercise of discretion and weight which was given to particular matters. Others are predicated on an assumption that the court must have misunderstood the father’s case because, had it been understood then the orders that the father sought, ought to have been made. A number of the grounds are general and vague, such as “that the trial judge mistakes the evidence and the father’s case”, and “that the trial judge erred in the findings made from 111 and elsewhere”. One of the grounds of appeal which complains of an error in failing to provide reasons for accepting a “substantial and significant time” regime over “equal time” regime contains a misstatement of the law. Another ground shows a misunderstanding of the context in which a particular expression (“diminution of the quality of the relationship”) was used, being a citation from a Full Court decision.
My impression in light of my knowledge of the matter is that the appeal is not based on substantial grounds.
The desirability of limiting the frequency of any change in a child’s living arrangements
It is generally desirable to limit the frequency of change in children’s living arrangements so long as this is consistent with their best interests. In this case in the short time between the making of the orders appealed against and the hearing of the stay application, a number of steps had been taken by the mother to change the children’s living arrangements. Although she was criticised by the father for making these arrangements, I am of the view that the steps she took were reasonable in the circumstances she faced, where a new school term was to commence within a couple of weeks of the orders being made.
The new arrangements in my view are not as dramatic as those which involve for example a change in primary residence or a cessation in time spent with a parent. Under the orders appealed against the children are to live with the mother who they were previously living with on an equal shared basis, they will be living in an area with which they are familiar and near the extended maternal family and they will spend substantial and significant time with their father. This time will commence as soon as the father makes arrangements to travel to Town P to see them.
In respect of maintaining the status quo, a number of cases, starting with Clemett & Clemett[8], refer to the desirability for the frequency of any changes in custodial arrangements relating to the child being limited as much as possible. In that case, Nygh J said at 76,175:
If the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt with within 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.
[8] (1981) FLC 91-013
Subsequent cases, including the Full Court decision of CSN & JBN[9], make it clear that in order for the Court to attach weight to the status quo, the aspect of the present circumstances of the child being satisfactory is critical.
[9] (1998) FamCA 176
It is central to the father’s position that the circumstances if the stay were granted would be satisfactory for the children. The mother submits that these circumstances would be unsatisfactory as the children would continue to experience uncertainty as to their future which has been the case for the last four years, and which may continue for another year to 18 months. Within 18 months, the eldest child, E, will commence high school and it is particularly important for her to be settled in this period. At the heart of the decision concerning these children’s circumstances was their subjective experience of the shared care arrangement to which I attached great weight which included their feelings of dissatisfaction about the constant change in the care arrangements.
It was submitted on behalf of the father that the adjustment for the children to their new circumstances has been difficult and will continue to be difficult because of the actions of the mother and that for this reason, the circumstances of the children, if the stay were not granted, would not be satisfactory. It is submitted by the mother that there is no evidence that the transition has been difficult for the children. Since the children have been in the care of the father for one and a half weeks prior to the hearing it would be expected that the father would have included evidence of these difficulties for the purposes of this application. In these circumstances, it is submitted that the court can draw the inference that there are no problems for the children with the new arrangement. From the children’s perspective it is submitted they have already moved to a new phase in their lives in that they have said goodbye to their Sydney friends and school, have visited Town P and are ready to start the new school in a matter of days.
The period of time in which the appeal can be heard
There is no evidence about the likely time in which an appeal will be heard. It was submitted by the mother that in the usual course that it may take up to 18 months for the appeal to be heard by the Full Court and the father has not sought for the matter to be expedited. This is a substantial period of uncertainty for these children, especially as proceedings involving their parenting have been ongoing for over four years.
The best interests of the child
The final matter to consider is the best interests of the children. Many of the best interest factors have been touched upon earlier in these Reasons, but some which are particularly salient will be reiterated.
The father relies in particular on the primary consideration of the children receiving the benefit of a meaningful relationship with both of their parents and submits that if the stay were not granted then that relationship with the father may be jeopardised. Having regard to the meaning attached to the expression “meaningful relationship” in the authorities, I am of the view that the children’s meaningful relationship with their father will not be jeopardised if a stay is not granted and that the children receive the benefit of a meaningful relationship with both parents under each of the alternative arrangements.
The father also attaches significant weight to the children’s views expressed through the Family Consultant that they would like the current parenting arrangement (that is the equal time arrangement in Sydney) to continue. However, the Family Consultant was also of the view, which was not challenged in the proceedings, that the children were careful to present both parents in an equally favourable light and were attempting to broker a peace between their parents and did not wish to be disloyal to either of them. For this reason I attach less weight to this aspect of their views and greater weight to their views concerning their experience of shared care regime. Both of the children, who had experienced this regime for a number of years expressed the difficulty of being part of two households and having to repeatedly adjust to a different pattern of care each week. E said that the constant moving back and forth between the two households sometimes leaves her feeling like she has no home and expressed very descriptively that she is “very very very very very sick of it”, (the week about arrangement). J described feeling like being in a washing machine going back and forth.
There is also significant weight attached by the father concerning the likely impact of the change in circumstances in the event that the stay is not granted and the children relocate to Town P. This issue has been dealt with earlier in the Reasons though further submissions were made, in particular, in relation to the non-availability of a Catholic school in Town P, which is contrary to the mother’s evidence at the trial. Although it is unfortunate that a position in a Catholic school is currently unavailable in Town P, as it is important to these children and has been supported by the parent’s decision to raise them within the Catholic faith, this is in my view an insufficient reason of itself for the stay to be granted.
Having regard to each of the best interests considerations that are relevant in this matter, which were closely examined in the 5 September judgment and in the absence of any evidence to suggest that my views regarding those considerations are no longer correct, I am of the view that it is in the best interests of these children for the parenting regime instituted by those orders to continue.
Conclusion
Although it is not necessary for the applicant to demonstrate any special or exceptional circumstances, he still bears the onus to establish that there is a proper basis for the stay in this matter. The mother is entitled to the benefit of the judgment given on 5 September and is entitled to presume that judgment is correct. As explained, I am of the view that the father’s appeal will not be rendered nugatory if a stay is not granted and I am of the view that although the appellant has an arguable case on appeal it is not a strong one, as presently drafted. It is desirable that the frequency of change in the children’s living arrangements is limited as much as possible, but in this case a number of the changes brought about by the orders have already occurred. Further, having regard to the likely period that will elapse before an appeal is heard, the unsatisfactory features of the previous arrangement and the future of the children remaining undetermined, together with my view that the arrangement under the current orders is in the best interests of the children, the application for stay is dismissed.
The mother’s application that the father pay her costs in relation to the application is reserved to a date to be fixed.
I certify that the preceding forty eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 1 October 2014.
Legal Associate:
Date: 1 October 2014
5
0