HG v HC - [2011] WASCA 50

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: HG -v- HC [2011] WASCA 50

CORAM: PULLIN JA

HEARD: 14 FEBRUARY 2011

DELIVERED : 14 FEBRUARY 2011

FILE NO/S: CACV 7 of 2011

BETWEEN: HG
Appellant
AND
HC
Respondent

ON APPEAL FROM:
Jurisdiction              :  FAMILY COURT OF WESTERN AUSTRALIA
Coram  :MARTIN J
Citation  :HC and HG [2011] FCWA 11
File No  :PT 3834 of 2011

Catchwords:

Practice and procedure - Application for stay of Family Court orders - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: In person

Solicitors:

Appellant: In person
Respondent: In person

Case(s) referred to in judgment(s):

Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
HC and HG [2011] FCWA 11

PULLIN JA: The appellant applies for a stay of the execution of an order dated 20 January 2011 made by Martin J in the Family Court of Western Australia pending the hearing of the appellant's appeal against that order. The order made by Martin J was in the following terms:
1.Until further order, the child, G born 31 March 1998 is to continue residing in Perth with her grandparents, and to attend at the high school selected by her father in liaison with the paternal grandmother.
2.Until further order each parent is responsible for paying half of the school fees of the child G.
3.Both parties have leave to file any affidavits prior to 31 January 2011.
4.The proceedings stand adjourned to Monday 31 January 2011 with both parties to have leave to attend by telephone link‑up.
The appellant and respondent lived in a de facto relationship for some years and they had three children of that relationship, one of whom was G. The parties no longer live together.
The background is that on 28 March 2008, her Honour made an order that the parties should have shared parental responsibilities for the child. There were subsidiary orders dealing with where the child would live. At the time the mother lived in Dongara and the order provided that so long as she did so, the child would live during school terms with the father. The order set out what was to happen on holidays.
In 2009, the father shifted to Broome and the child lived there and went to school but later the child went to live with the mother at Dongara and went to school there. This seems to have been pursuant to agreement rather than by court order, although on 14 April 2010 I note that the judge ordered that until 14 May 2010, the mother was not required to return the child to the father in Broome, which suggested that that would have happened but for the court order.
It seems that there was then a further set of hearings and orders made by the court. They are set out in Martin J's reasons for decision in HC and HG [2011] FCWA 11 [19] ‑ [39] which read:
There was then no further contact from either party until December 2008, when the respondent mother contacted the Court regarding problems with making arrangements for the 2008/2009 summer school holidays. Arrangements were made for the Manager of the Family Court Counselling Consultancy Service, Paul Kerin, to liaise with the parties and the issue was resolved.
The next issue arose when the respondent mother contacted the Court regarding a possible contravention application. On 24 September 2009, she filed a Form 1 application seeking that the children reside with her, with the father to spend holiday time with the children. The mother sought a number of additional orders.
By then, there had been a significant change of circumstances as the father had relocated to Broome, with the children, on 12 May 2009, as he had received a promotion with his employer … The children were enrolled in St Mary's College in Broome. The father was then living in a de facto relationship, but that had ceased, I understand shortly after his move. The husband was relying on some assistance, from a housekeeper, with the care and supervision of the children. These arrangements were not those that had been proposed at the trial of the proceedings, as the father's position had been that he would be residing close to his parents, and also having the assistance of his then girlfriend.
On 12 October 2009, the father filed a response seeking that the children continue to reside with him, and spend time with the mother during school holidays.
As to the mother, she has remained residing in Dongara, but is, and has been, involved in a relationship with a person, who apparently lives overseas. She has travelled overseas to spend time with him.
On 22 December 2009, the independent children's lawyer met with the children. The elder two children had said that they were not happy living in Broome. They said they were being left unsupervised for some of the time, because of their father's work commitments.
On 22 January 2010, I ordered the children be made available for collection by their father in Dongara on 29 January 2010, to return to Broome at that time. The proceedings were adjourned to 3 March 2010. The Court was then informed that the independent children's lawyer intended to contact the children's school regarding any involvement the children may have had with the social worker/psychologist, and to arrange an appointment with a further expert, with the intention that the interviews be conducted during the April school holidays in Perth.
On 29 March 2010, the applicants filed a notice of alleged child abuse or family violence, making extensive allegations against the applicant, including family violence and sexual abuse of all three children.
On 31 March 2010, I ordered that the father ensure the children were placed on the flight from Broome for the April school holidays and so that the children could be interviewed by the single expert, Stephen Cohen, a clinical psychologist who has then been appointed as single expert to enquire and report on a large number of issues, including a psychological assessment of the parties, and whether the children were at risk of abuse of any kind from any person.
In a letter dated 12 April 2010, Mr Cohen stated:
'As requested by the Court I undertook interviews with the three girls 7 April 2010. During the interview I spoke to each of the girls at length and had each child complete the Family Relations Test. …
Before I make any comments in regard to the matter I reiterate that these are preliminary comments given that I have not spoke to either parent and have not seen the children in the company of either parent. …
In general all three children appear happy, healthy and well rounded. All three children made it quite clear that they wished to remain together and certainly did not wish under any circumstances to be separated. The children generally expressed a wish to be resident with their mother and to spend half the school holidays and half the Christmas holidays with their father. Their general reasons for this were they perceived the father to be struggling to care for them describing there being periods of absence by the father between after school and him finishing work except for the days that they had basketball. All three children expressed their concern about their father's anger. Please note the children were all interviewed individually. …
Of note was the children's history of attending school which include Dongara District High School, Gidgegannup, Coogee Primary School, Darlington Primary School and Woodbridge Primary School and I believe in G's case being to Dongara District High School on two occasions. All the children expressed a concern that they would like to find themselves at one school and stay there. …
All the children expressed their concern about their father's anger. They see that as not deliberately towards them but seeing him struggle to deal with having them all to look after. They see him as sometimes happy and truly look forward to going to him on the holidays during which they all expressed that he was great fun. Their concern was his attempts to look after them and work at his job at the same time saw him stressed, frustrated and angry at times. They all spoke extremely positively about past and future holidays with their father and some weekends. They believe going fishing and being out and about with him is a great deal of fun, something that they really look forward to on the holidays. …
In regard to their mother the children all saw her as very nice, happy, someone whom they can talk to and as being highly emotionally available to them. A positive aspect for the mother was that they deemed her to be very understanding of their school work and very positive about it, something which they felt their father struggled with. They didn't see their father as being particularly academically orientated. …
All three children spoke positively about the paternal grandmother however deemed the paternal grandfather was grumpy, somewhat like their father. They particularly found themselves being upset when the paternal grandfather was often negative and argumentative with the paternal grandmother whom they obviously like a good deal. They miss seeing the paternal grandparents as they live closer to Perth. …
All the children spoke of having a good relationship with the maternal grandparents.
There was no indication from any of the girls of any fear, concern or indication of abuse by any of the family members. The children were positive about their cousin Harry and the paternal grandfather and there was no indication that anyone had undertaken any behaviour that made them scared, frightened or feel yucky. …
I am not in a position to make any recommendations in this regard to where the children live and whom they spend time with at this time. All I can tell you is that the children clearly preferred to remain living with their mother in Perth for the reasons outlined above but remained extremely positive and keen about visiting their father, whom they believe can be a great deal of fun on holidays taking them fishing and other broad range of activities.'
On 14 April 2010, it was ordered that, until 14 May 2010, the mother was not required to return the children to the father in Broome at the conclusion of the school holidays. Prior to that date both parties were to file and serve a brief affidavit as to their current proposals as to the care of the children in the short, medium and long term, including the financial arrangements.
Until further order, the mother was restrained by injunction from taking the children to be examined or assessed by a health professional, apart form the single expert, so that they needed urgent medical treatment.
The father's parents were to be permitted, on advice to the mother, to spend up to three days with the children during the April 2010 school holidays.
On 14 May 2010, it was ordered that the children spend time with their paternal grandparents over the long weekend, commencing 5 June 2010 at Gidgegannup, and it was further ordered that the father be at liberty to arrange for the children to spend time with his parents during the July school holidays, after they had spent at least a week with him in Broome. The children were to travel to Broome for the first week of the school holidays.
An order was made that the mother be permitted to inform Centrelink she has had the care of the children from 2 April 2010.
There was no further material filed in the Family Court, until the letter from the independent children's lawyer to which I have already referred, received in January 2011.
The respondent sent a facsimile application in relation to child support to the Court on 17 January 2011.
The position in relation to the substantive orders is that they have been adjourned pending any further application of the parties, and pending the publication of the report from the single expert, Mr Cohen. I have been informed that this is now imminent.
In the meantime, the children have been residing primarily with their mother in Dongara, but have spent school holiday time with the father and their paternal grandparents.
As to the substantive orders, presently the parties retain equal shared parental responsibility, and, pending further assessment and/or further proceedings, the mother has been permitted to retain care of the children, although without a formal order for the children to live with her.
My assessment of the parties at present, is that the father, while caring and committed is, and has been, for a long time, very frustrated about the course of events, in particularly the respondent mother's actions. He blames her approach to the Family Court proceedings and the Supreme Court proceedings as having a very serious effect on his, and his family's, finances. He had made it clear he is heartily sick of the continuing allegations of family violence and sexual abuse – the former having been found to be very largely unfounded, and the latter to be unfounded, particularly since the mother has placed continuing pressure on the children. As to the mother, she remains on a crusade for vindication, and for financial recompense. As I had concluded by the end of the substantial previous proceedings, when I had the opportunity to observe both parties over a lengthy period, I have grave concerns about the respondent's credibility, but it may well be possible that she does genuinely believe her assertions, even though very largely unfounded.
None of the orders disturb the joint parenting order of 28 May 2008 which remains in place.
At the beginning of this year a dispute arose about where G would go to high school. On 20 January 2011, a hearing was convened before Martin J as a result of a request from the independent children's lawyer.
The position of the parties before her Honour on 20 January 2011 is set out in her Honour's reasons, in [2] ‑ [5] which read:
The mother's position is that the child should attend Santa Maria College in Attadale as a boarder with the father contributing $7000 towards the costs, the government though the Isolated Children's Scheme contributing about 11 to 12 thousand dollars and the mother paying the balance which it was estimated would be from four thousand to eight thousand dollars per annum.
The father's position was that this was not financially sustainable, particularly when the parties and his parents were embroiled in Supreme Court proceedings with the respondent in relation to property matters which are expected to proceed to trial during this year.
His position was that the child could live with his parents at Gidgegannup and possibly attend a local private school or, if necessary, a high school. It appeared to be accepted by all parties that a place for the child at a suitable school was not available in Geraldton.
The independent children's lawyer's position was that it did not appear to be sustainable for the child to attend Santa Maria College as a boarder and that the father's proposals were preferable to those of the mother.
As a result, the orders of 20 January 2011 were made. The orders were made after the urgent hearing but in the absence of any affidavit evidence. As a result the judge programmed the matter through to a hearing once affidavits and reports had been obtained. On 31 January 2011, Martin J ordered that the time the parties have to file and serve any affidavits be extended to Thursday 24 February 2011 and the proceedings otherwise adjourned to 28 February 2011.
The appellant's objective is to obtain an order that G attend Santa Maria as a boarder. That objective cannot be achieved by this application. This is an application for a stay of the orders of 20 January 2011. If the orders were stayed, it would not result in G attending Santa Maria. It would leave the parties to reach agreement as parents pursuant to the joint parenting order. The application is therefore futile.
The transcript of the hearing on 31 January 2011 revealed that G was at Gidgegannup on that day staying with her paternal grandparents and due to commence school the next morning at a school in Mundaring. The child representative submitted that the Mundaring school seemed to be the best option. She submitted:
She gets a good education there and it's affordable, your Honour. That's the difficulty. I can just see that if there's going to be a bit fight about where G goes to school, that's going to be very detrimental to G. (ts 6)
The principles governing an application for a stay have been stated in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9]:
•The successful litigant at first instance will ordinarily be entitled to enforce the judgment pending the determination of any appeal.
•It is for the applicant for a stay to move the court to a favourable exercise of its discretion.
•It will not do so unless special circumstances are shown justifying the departure from the ordinary rule.
•The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation, or where refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. It is often put shortly that it will first and foremost be necessary to establish that without the grant of a stay, the right of appeal, whether upon the grant of leave or special leave or not, will be rendered nugatory.
•If that can be demonstrated, the stay will generally still be refused unless it can be established that the appeal process … has ultimately reasonable prospects of success so as to result in the grant of relief to the appellant.
•… the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant;
There is nothing in the information before me which suggests that the appeal would be rendered nugatory if the stay is not ordered. An urgent decision had to be made about where G went to school and the issue between the parties about that issue is still to be resolved in the Family Court after affidavits have been filed.
Secondly, there are no grounds of appeal, no appellant's case and no draft grounds of appeal indicating what error is alleged to have been made by the judge. It cannot, therefore, be said that the appeal has ultimately reasonable prospects of success because no error has yet been identified.
Finally, the balance of convenience does not lie in favour of the applicant for the following reasons: first, the child representative is satisfied with the schooling arrangements which are in place; secondly, because there was no evidence before the judge on 20 January 2011 that the parties could afford the fees which would be payable if the child was to go to Santa Maria and, thirdly, the order of 20 January 2011 was merely an interim order pending a full hearing in the Family Court when affidavits have been filed and when the appellant will have a full opportunity to advance all her arguments.
As a result, the application for the stay is dismissed and I so order.