Highgate and Solage
[2018] FamCA 1076
•23 November 2018
FAMILY COURT OF AUSTRALIA
| HIGHGATE & SOLAGE | [2018] FamCA 1076 |
| FAMILY LAW – PRACTICE AND PROCEDURE – APPLICATION FOR STAY – Where application for stay of interim parenting decision – Where consideration of applicable principles – Where application for stay dismissed. |
| Family Law Act 1975 (Cth) ss 60CC, 61DA |
| Aldridge & Keating (Stay Appeal) [2009] FamCAFC 106 Banks & Banks (2015) FamCAFC 36 Clemett & Clemett (1981) FLC 91-013 Dieter & Dieter (2011) FamCAFC 82 EB & Spielman (2015) FamCAFC 104 EJK & TSL [2006] FamCA 806 George & George (2013) FamCAFC 182 Marvel & Marvel (No 2) (2010) FamCAFC 101 SS & AH (2010) FamCAFC 13 |
| APPLICANT: | Mr Highgate |
| RESPONDENT: | Ms Solage |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Duncombe |
| FILE NUMBER: | PAC | 5387 | of | 2016 |
| DATE DELIVERED: | 23 November 2018 |
| PLACE DELIVERED: | Suburb Q |
| PLACE HEARD: | Suburb Q |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 23 November 2018 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr Gordon of ABF Legal |
| SOLICITOR FOR THE RESPONDENT: | Ms Grew of Matthews Folbigg Pty Ltd |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Dignan And Hanrahan Solicitors And Attorneys |
Orders Made on 23 November 2018
That the Application for stay filed 5 November 2018 by the father be dismissed.
That any application for costs be made by way of written submissions filed and served by no later than Friday, 7 December 2018 and any submissions in response to be filed and served by no later than Friday, 21 December 2018 and thereafter upon completion of submissions as to costs be reserved to chambers.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Highgate & Solage has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SUBURB Q |
FILE NUMBER: PAC 5387 of 2016
| Mr Highgate |
Applicant
And
| Ms Solage |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
In this matter the application for determination is the father’s Application in a Case filed 5 November 2018 seeking a stay of interlocutory parenting orders made by this Court on 28 October 2018.
The Application in a Case filed by the father seeks the following orders:
(1)that order (1) of the orders dated 28 September 2018 be stayed pending the outcome of the applicant’s Notice of Appeal filed 26 October 2018 or until further order of the Court;
(2)that pending the outcome of the Notice of Appeal (or further order of this honourable Court) the children remain enrolled and attend at their current school;
(3)any further order this honourable Court deemed meet; and
(4)costs.
In support of the Application in a Case the father relies upon his affidavit filed 31 October 2018. The primary reasons for judgment were delivered on 28 September 2018 and orders made that day. In summary, the orders made provided as follows:
(1)that the mother have sole parental responsibility for the subject children X born in 2010 and Y born in 2011;
(2)that the children live with the mother;
(3)that the children spend time with the father as agreed between the mother and father in writing and in default on a supervised basis on alternate weekends.
(4)that the father be restrained from contacting or approaching the mother except via her legal representative, approaching or contacting the children, approaching the children’s school, attending at any sporting or extracurricular events and authorise or encourage any third party to approach or contact the children save and except for the mother’s expressed consent in writing.
The Independent Children’s Lawyer was given leave to relist proceedings on short notice in appropriate circumstances. The mother in response to the father’s Application in a Case filed a Response to an Application in a Case on 21 November 2018. In that Response she sought orders that the father’s application for stay be dismissed and consequentially an order that her cost be paid by the father. The mother relied upon her affidavit filed 21 November 2018 and the exhibits referred to therein now comprised as exhibit “D” before the Court today.
The father’s case primarily focusing upon the allocation of sole parental responsibility to the mother and the mother’s right, therefore, should she see fit to change the children’s schooling arrangements, is that he expresses significant concern as to the mother changing the children’s school arrangements from their current school at M School. The children have attended that school the entirety of their schooling lives. The eldest child is currently in year 3 and the youngest child is currently in kindergarten.
The father gives evidence of his involvement in the children’s schooling and extracurricular activities and asserts that changing the children’s school would cause them unnecessary anxiety. He asserts that in 2017 the children disclosed to him that they did not wish to change schools.
In submissions, the father, through his legal representative, relies on a number of issues in support of the application for stay. Firstly, it is contended that a failure to stay the orders would render the appeal nugatory. The concept of nugatory incorporates a concept of complete frustration of the object of the appeal. In this case the children have been at a state public school for some years and there is no doubt that it is the mother’s proposal having regard to the material in her affidavit in support of the opposition to the stay that for very practical and child focused reasons she seeks at least pending final hearing of the parenting proceedings to change the children’s schooling arrangements to a school much closer to her.
Clearly at final hearing in the event that orders made such that the children would be able to return to their previous school then those orders can be made facilitating that return to school. It is the mother’s position that she does not propose to change their present schooling arrangements until the end of the current financial year. Such an intention in the circumstances of this matter is commendable.
The father also contends that it is appropriate on appeal for the Court to consider limiting the frequency of changes in the children’s circumstances. This, of course, substantially relating again to the issue of schooling, but, of course, as we will be seeing from the mother’s affidavit material to be considered later in these reasons for judgment, there are overarching practical considerations that render this consideration of little consequence.
It is further submitted on behalf of the applicant father that the period within which the appeal would be determined is as yet indeterminate. Experience, in this registry at least, is that an interim appeal from parenting should well be heard and determined with judgment delivered within 12 months from the date of the Notice of Appeal being filed.
Of course, conversely, in circumstances that presently are in this registry in the Family Court of Australia at Suburb Q there is a significant prospect that final parenting proceedings will be resolved, heard and determined prior to the interlocutory appeal being heard.
Finally, the father relies upon the nature of his grounds of appeal in supporting the application for stay. The grounds of appeal are numerous and no doubt will be significantly compacted prior to any determination or appeal before the Full Court of the Family Court of Australia.
In dealing with the Grounds of Appeal they are dealt with them in terms of their numbering in the Notice of Grounds of Appeal filed on 26 October 2018.
As to Ground 1, it is asserted that there was error in failing to take into account the relevant circumstances of the children’s care by the father from August 2015 until June 2018. This ground of appeal fails to have regard to the recital of such circumstances in paragraph 24 of the reasons for judgment.
Ground 2 of the appeal alleges that error was made in postulating that the children had a primary attachment to the mother. A consideration of the reasons for judgment at paragraphs 12, 24, 25, 27, 30, 33, 35, 49 and 52 must lead to the inescapable inference that, in fact, that was the circumstance that the children were primarily attached to the mother, she being their primary carer.
Ground 3 of the appeal was an allegation of error in finding that the children’s relationship with the father is overshadowed by his mental health issues and concerned for the children in his care. This ground also ignores reasons for judgment at paragraphs 17 to 22 inclusive, 28 to 31 inclusive, paragraph 38, paragraph 41, paragraphs 49 to 50 and paragraphs 54 to 57 that make it patently clear that such is, indeed, a significant matter of concern.
Ground 3 has various sub grounds that need not be considered in the context of the ground overall.
Ground 4 alleges error in making a parenting order by failing to address the statutory consideration comprised in section 60CC(2)(b) of the Act as to the need for protection of children from physical or psychological harm or the risk of being exposed to such harm. Such a contention on appeal fails to have regard to paragraphs 95 and 96 of the reasons for judgment.
It is further contended in Ground 5 that the Court applied an incorrect test in that it did not make positive findings about the existence of a fact of physical or psychological harm and the need to protect the children therefrom. This ground also fails to have regard to paragraph 95 of the Court’s reasons for judgment.
Ground 7 postulates that it was necessary in determining the question of risk and the need to protect the children for the judge to make findings about the existence of physical or psychological harm or the need to protect the children from risk. Such a contention ignores Full Court authorities that have been regularly applied and followed in the context of interim hearings. Those authorities include Marvel & Marvel (No 2) (2010) FamCAFC 101, SS & AH (2010) FamCAFC 13, Dieter & Dieter (2011) FamCAFC 82, George & George (2013) FamCAFC 182, EB & Spielman (2015) FamCAFC 104 and more recently Banks & Banks (2015) FamCAFC 36.
Indeed, the Court is simply charged with making as best it can orders on the evidence or inferences available from the evidence before it.
The next ground of appeal Ground 8 alleges that there was a failure to take into account evidence in suggesting the children were benefiting from the father and his partner’s interest and assistance. Indeed, reasons for judgment reflect that it was, indeed, conceded by the mother that the children have a good relationship with the father and the judgment details the father’s engagement in various aspects of the children’s life. Accordingly, it is the view of this Court that such ground has no weight.
Ground 9 asserts that the Court took into account irrelevant consideration, namely, an assertion by the mother without making a finding as to whether or not the assertion was true. Regrettably, the nature of such an assertion is not contained in the ground of appeal itself as it is required and so no comment can be made as to the weight to be attached to this ground of appeal.
It is further contended in Ground 10 that the Court erred in making a credibility finding against the father in circumstances where an examination of the reasons for judgment fail to disclose any finding as to credit in relation to the father.
Ground 11 provides that the primary judge failed to have regard to section 61DA(3) of the Act in making interim orders and failed to adhere to the legislative pathway for the determination of parental responsibility and the rebuttal of that presumption.
This ground fails to have regard to paragraphs 34, 36, 37, 39, 43, 82 and 99 of the reasons for judgment.
Ground 12, the final ground of appeal, asserts the Court erred in ordering that the mother have sole parental responsibility for the children without in turn ordering an injunction that the mother be prevented from changing the children’s school. An examination of the Court’s reasons for judgment clearly reveal the Court was alert to the circumstances that it was the mother’s proposal at an appropriate time to change the children’s schooling arrangements. There is no merit in this ground of appeal.
In considering the grounds of appeal overall, it must be said that the father’s appeal has very poor prospects of success. The mother in her affidavit opposing the father’s application for stay updates the Court as to her circumstances and those of the children. The mother revealed that she is, indeed, a serving police officer. She further says that the father has spent time with the children alternate Saturdays since the orders were made. Currently, that time taking place at the home of the paternal aunt in N Town and with the mother undertaking the travel for the purposes of that contact.
The mother has significant concerns in terms of travel for the children to get to and from school. At present that travel involves an hours travel from her present residence to school and then after school, ultimately, another hours travel back to the mother’s residence for her after they have been dropped off. And then again travel to have the children picked up after school in lieu of other care arrangements the mother might make and then returning to her home again.
The mother is engaged in some four hours travel per day and the children too.
The mother contends most sensibly that it is in the best interests of the children to be enrolled at a local school closer to her home. She says that in early October 2018 she applied for a transfer to the Suburb O Police area command at Suburb P. That transfer has been approved and will take effect from 16 December 2018.
The mother says that the child Y complains on a daily basis as to the rigours of travel with the children often falling asleep in the car either on the way to school or on the way home from school.
The mother has looked at properties to purchase in the Suburb Q area which would be nearby to her new place of employment at Suburb P and proposes that the children may attend R School which would be a school local to where she proposes to live. That school has before and after school care available on site and she says is a feeder school for the S School.
The mother expresses concern that the father continues to engage in combative communication through his solicitors and has not demonstrated any ability to properly deal with his circumstances in the context of the present orders.
The law to be applied in relation to stay of appeal pending in terms of an interim parenting order is to be found in Aldridge & Keating [Stay Appeal] (2009) FamCAFC 106:
17.This is an appeal from a discretionary judgment. There are well established principles on the limits on interference by an appellate court with such a judgment (see House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716).
18.The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:
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 any “special” or “exceptional” circumstances;
a person who has obtained a judgment is entitled to the benefit of that judgment;
a person who has obtained a judgment is entitled to presume the judgment is correct;
the mere filing of an appeal is insufficient to grant a stay;
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 a 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 the stay for a short period of time; and
the best interests of the child the subject of the proceedings are a significant consideration.
32.To not accede to the granting of a complete or limited stay means a continuation and perhaps further development of a relationship between the respondent and the child that his Honour found to be warm and loving. We find that he did both consider and appropriately analyse the child’s position.
36.In K & B (2006) FLC 93-288 the Full Court dismissed a stay appeal where it found that the arrangements which existed for the particular child at the time of trial were not satisfactory, and therefore the maintenance of the status quo pending the determination of the substantive appeal was not in the child’s best interests. The Full Court, at paragraph 32, explained why in a parenting appeal, the granting of a stay to maintain a “status quo” is not always appropriate, or the best interests of a child may dictate refusal of a stay as appropriate. Their Honours said:
The granting or refusal of a stay involves an exercise of discretion by a trial Judge. Whilst such discretion must be exercised judicially, in cases involving children, we accept that from time to time circumstances in existence at the date of the orders, or which occur from the date of orders until the hearing of a stay application, may be very relevant matters to be considered in the exercise of discretion in determining whether or not to grant a stay. The interests of children would not be promoted by an inflexible requirement or presumption in every case to maintain the status quo prior to the making of orders the subject of the stay application, and to ignore unsatisfactory arrangements at the time of the orders, or significant events which have occurred after the making of those orders.
In the decision of Clemett & Clemett (1981) FLC 91-013 a decision of his Honour Nigh J at page 76 175 states:
Unfortunately, in this case the transcript does not disclose the reasons which motivated his Honour. His Honour contended himself with the general statement that he had considered all the relevant matters. He did not state what matters he considered or did not consider relevant to the refusal of the stay. We think that it is desirable that in cases of this nature some short reasons should be given for the guidance of the parties and of the appellate court. It must follow that it is much more difficult to grant a decision given without [76175] explanation the same presumption of correctness as would be given to a decision which had been properly explained. As the High Court said in Penfold v Penfold (1980) FLC 90-800 at p. 75,054; (1980) 5 Fam. L.R. 579 at 582:
The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised.
These remarks are equally relevant to the exercise of the discretion to grant a stay of proceedings.
In EJK & TSL [2006] FamCA 806 it is stated at paragraph 17:
17.Although we note that this decision pre-dates the Family Law Reform Act 1995 (Cth) when the whole of Part VII of the Family Law Act 1975 (Cth) (‘the Act’) was subject to ‘the best interests test’, we accept the principles espoused are relevant to this application, and the child’s best interests, even if not the paramount consideration, on the facts of this case are a significant consideration. The importance of the consequences for a child of granting or refusing a stay are well recognised. In JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332 Kirby J said:
In my opinion, some adaptation of the rules stated in the cases governing stays in this Court must also occur in cases which affect significantly third parties who are not parties before the Court and, in particular, children whose welfare must always be in the mind of a court in making an order affecting their interests.
The factors generally to be considered include the following:
a)That the onus is on the applicant to establish a proper basis for a stay. There is no necessity to demonstrate special or exceptional circumstances. In the context of this application for a stay it is readily apparent that there is no proper basis for the stay being granted.
b)Secondly, the mother is entitled, having obtained a judgment on interim parenting, to the benefit of that judgment.
c)Thirdly, the mother is entitled, having obtained judgment, to assume that the judgment and the reasons for judgment are correct.
The mere filing of an appeal is insufficient grounds to grant a stay.
The bona fides of the applicant for a stay in the circumstances of the present stay whilst the father may have some regret or reservations as to the children changing schools as proposed by the mother for the 2019 school year, it does not present in the circumstances of this matter a bona fide basis for seeking an order for stay in the interest of the children. Otherwise, the Court can grant a stay on terms that are fair to all parties. The circumstances of this case do not give rise to any consideration of a stay on any conditions whatsoever.
Otherwise, the Court is tasked with weighing the risk that an appeal may be rendered nugatory if the stay is not granted. The Court has considered this issue above in the context of the father’s submissions.
The Court is required to undertake some preliminary assessment of the strength of the proposed appeal and whether the appellant has an arguable case. As said above, it is the view of this Court that the father’s prospects on appeal are very poor.
Otherwise, the Court is required to look at the desirability of limiting the frequency of any change in the children’s living circumstances. That consideration has been dealt with above in these reasons for judgment.
The period of time in which the appeal can be heard is a matter for consideration. That has been dealt with above. It is likely that these proceedings as to parenting will be heard to finality in this Court before, indeed, the appeal itself is determined by the Full Court of the Family Court of Australia.
Otherwise and finally, the best interests of the subject children are a significant consideration. The children at present remain in the primary care of the mother with the father having for good reason limited time which hopefully in due course will expand accordingly.
The children are exposed to significant travel each day simply to preserve their ongoing previous schooling arrangements at M School. It is in the best interests of the children for practical considerations that the children be able to be moved by the mother to a school closer to her place of abode and her place of occupation.
Overall, it is in the interests of the children that they be able to change schools.
Overall, in the context of this application for stay it is in the best interests of the children having regard to all of the considerations above that the application for stay be dismissed and an order will be made accordingly.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 23 November 2018.
Associate:
Date: 23 November 2018
0
2
1