Holinski and Holinski (No. 2)

[2013] FamCA 658

FAMILY COURT OF AUSTRALIA

HOLINSKI & HOLINSKI (NO. 2) [2013] FamCA 658

FAMILY LAW – PRACTICE AND PROCEDURE – Application for stay pending appeal to Full Court – Interim parenting Orders – Father to have time with the children supervised and unsupervised – Principles in respect of stays considered – Stay granted in part.

Family Law Act 1975 (Cth)

B v B (1986) FLC 91-758
Cape & Cape [2013] FamCAFC 114
Clemett & Clemett (1981) FLC 91-013
Cowling & Cowling (1998) FLC 92-801
CSN & JBN (1998) FamCA 176
Gaffney & Gaffney [2012] FMCAfam 390
Goode & Goode (2006) FCL 93-286, (2007) 36 Fam LR 422, [2006] FamCA 1346
Gronow & Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Trahn & Long (No. 2) [2008] FamCAFC 194

APPLICANT: Ms Holinski

RESPONDENT: Mr Holinski

INDEPENDENT CHILDREN’S LAWYER: Ms Hafey

FILE NUMBER: PAC 129 of 2013

DATE DELIVERED: 30 August 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 30 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Levet

SOLICITOR FOR THE APPLICANT: Mr Blumberg
Blackman Legal

COUNSEL FOR THE RESPONDENT: Mr Gersbach

SOLICITOR FOR THE RESPONDENT: Mr Sant
Turner Freeman Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Hafey
Legal Aid NSW

Orders

1. Order 2(c) made on 21 August 2013 be stayed pending the hearing of the appeal filed 29 August 2013.

2. The mother’s Application in a Case for a stay filed 29 August 2013 be otherwise dismissed.

3. The oral application for costs of each of the parties in respect of the Application in a Case be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Holinski & Holinski (No. 2) 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: PAC 129 of 2013

Ms Holinski

Applicant

And

Mr Holinski

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction & Background

1. Until yesterday, two young children, N, who is 16 months, and L, who is two and a half, had not seen their father for seven and a half months.  Their mother, Ms Holinski, took them with her when she left the family home on 11 January 2013, and had not permitted them to see their father since.

2. The children’s mother has made it very clear that she does not wish for her children to spend time with their father or his family.  The mother also hopes to be permitted to relocate to the United States, her home prior to coming to Australia to marry the father, and would like also to be permitted to take the children to the United States for five weeks prior to the proceedings being resolved.

3. On 20 August 2013, I heard an application by the father seeking an order that he spend time with the children on an interim basis and the mother’s application for an order permitting her to travel overseas with the children and have the father sign passport documents to facilitate that travel.

4. Other matters were also considered in the interim hearing and are contained in my Reasons for Judgment delivered 21 August 2013, but only the orders relating to the children spending time with their father and the mother being permitted to travel with the children to the United States are in contention.

5. Yesterday, the mother filed an appeal against the interim Orders and originally sought that the matter be heard before me yesterday afternoon and be determined on an ex parte basis. 

6. Yesterday, the father spent time with the children for the first time since January 2013 and this time together was supervised at a contact centre.  The Court was informed by the Independent Children’s Lawyer that reports from three contact centre supervisors revealed that the time spent together went well and this is common ground at the hearing of this application.

7. In this application, the mother seeks a stay of the Orders, which relate to the father spending time with the children. 

8. In support of the application for a stay, the mother relies upon an affidavit of her solicitor which simply attaches the Orders of 21 August 2013, the Notice of Appeal and the Reasons for Judgment delivered 21 August 2013.  The affidavit also states that the urgency in respect of the stay application was because the first contact between the children and their father pursuant to the Orders was due to take place yesterday afternoon.

9. The Respondent father and the Independent Children’s Lawyer were not served with the application immediately and first became aware that the matter had been listed today when my Associate sent an email to each of the parties.  I understand from the mother’s legal representative that service was effected by email on the Respondent and the Independent Children’s Lawyer at about 5.00 pm yesterday.

10. The father seeks that the application for stay be dismissed. 

11. The Independent Children’s Lawyer’s position in relation to the application is that it is opposed, except she did express some concerns about the children spending such a lengthy period of time unsupervised with their father on 1 September 2013 at this early stage, notwithstanding that the time spent together yesterday went so well.

The Law

1. The law as to the general principles applicable to a stay pending appeal is well settled.  In Cape & Cape[1] in which 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 Crisford J, the First Instance Judge, as accurately relying upon the statement of principles by the Full Court in Tranh & Long (No. 2)[2], which itself was drawn from authorities set out in Cape & Cape (supra).  The principles from Trahn & Long (No. 2) (supra), which were described as accurately governing the determination of a stay application concerning a child are[3]:-

   [1] [2013] FamCAFC 114

   [2] [2008] FamCAFC 194

   [3] Paragraph 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.

2. I will now consider the factors.

The bona fides of the applicant

1. I am satisfied that the Applicant appeals as a consequence of her concern for the best wishes of the children and her view, whether rightly held or otherwise, as to the correctness of the Judgment.  It does not appear that the appeal has been filed in an attempt to delay the proceedings.  In other words, I am comfortably satisfied that the mother is bona fide in pursuing her right to appeal the decision.

Whether the stay should be granted on terms fair to all parties

1. The terms sought by the mother would result in a return to the situation prior to the Orders appealed against, that is, the children would spend no time with their father.  The grounds of appeal, in summary, are:

   1.that the failure to order that the time spent on 1 September 2013 with the father be supervised is unreasonable;

   2.that the Court erred in only having regard to the evidence put by the mother, which was not placed in issue by the father;

   3.that the Court erred in making Orders that the child spend time with the father without first obtaining an expert’s report; and

   4.that in making Order 4 the Court denied the mother procedural fairness.

2. Although, there is no ground of appeal that the Court erred in the making of an order that the children spend any time with their father, I understand from submissions made today that it was intended in the Notice of Appeal to be contended that the Court erred in ordering that the children spend any time with their father.

Whether there is a risk that the appeal may be rendered nugatory if a stay is not granted

1. I accept the submission that so far as Order 2(c) is concerned, that if a stay is not granted, the appeal will be rendered nugatory.  In any event, the appeal so far as that order is concerned will, itself, be academic by the time the matter is heard, and I imagine may not be pursued.  The Respondent’s counsel submitted that having ordered some of the time spent to be supervised and some to be unsupervised was not unreasonable as there were benefits to flow from both situations.  However, it was conceded by the father and was a matter of concern for the Independent Children’s Lawyer that so lengthy a period of time was to be spent with the father at this early stage, which may interrupt the breast feeding regime for the younger child N.

2. Although, in my view, it was not clear from the Notice of Appeal that an order for any time being spent with the father is appealed against, I now understand that to be the case.  In my view, if a stay is not granted and the children spend time with their father under the interim Orders other than Order 2(c) prior to the appeal being heard, the appeal will not be nugatory as it is still open for the Full Court to determine that there be no time spent with the father between the date of the hearing of the appeal and the hearing of the substantive application, which is yet to be fixed.

A preliminary assessment of the strengths of the appeal

1. Under a preliminary assessment of the strengths of the appeal, as I have already indicated, the issue of time being spent with the father on 1 September 2013 is unlikely to be pursued in the event that a stay of that order is granted.

2. So far as the second ground of appeal is concerned, it is submitted that the Court erred in only having regard to the uncontested evidence.  In the Reasons for Judgment, the positions of the opposing parties was summarised and included submissions by the father as to the weight that the Court should attach to the mother’s allegations of abuse.  The Court was even invited to consider the mother’s case at its highest.

3. The Independent Children’s Lawyer position that the time spent between the father and children be to some extent supervised appears to relate at least in part to the assertions of harm made by the mother.  It is correct to say that in paragraph 43 of the Reasons for Judgment it was noted that the only suggestion of exposure to abuse or family violence arose from the contested allegations of the mother, but in paragraph 53 the Court referred to some of the substance of those allegations.

4. In Goode & Goode[4]  in setting out the approach to be taken in these matters, it was said that the Court is required to identify the issues in dispute and identify the agreed matters.  In my view, a fair reading of the Reasons for Judgment is that this was done.  Further, in the decision appealed against in Goode & Goode (supra), the Full Court were not critical of the Judge at first instance in dealing with the matter on the limited factual matters not in dispute[5].

   [4] (2006) FCL 93-286

   [5] Paragraph 15

5. Further in Goode & Goode (supra), in considering the extent to which Cowling & Cowling[6] continues to apply in interim parenting decisions, at paragraph 68 the Full Court said “the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is ‘significantly curtailed’.  Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.  The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute …”.

   [6] (1998) FLC 92-801

6. Ground 3 essentially contends that the Court erred in not adjourning the matter to obtain an experts report.  In declining to adjourn the proceedings, the Court placed significant weight on the age of the children and the period of time in which they had not spent any time with their father.  The only material relied upon by the mother in support of the adjournment was an affidavit of her psychologist as to the psychologist’s opinion for the necessity for an experts report.  The Court must, and, in my view, it is clear from the Reasons for Judgment did, have regard to all of the matters in relation to the best interests of the children in deciding not to adjourn the matter.

7. This ground of appeal depends to a large extent on a consideration of the weight that was given to a particular matter, and as is clear from House v The King[7] and the Gronow & Gronow[8], Appellate Courts are slow to overturn a primary Judge’s discretionary decision on grounds which only involve conflicting assessments of the matters of weight.

   [7] (1936) 55 CLR 499

   [8] (1979) 144 CLR 513

8. B v B[9] was referred to in the course of the interim hearing only in a general way.  However, the issue of the weighing of the risk of harm to the children through an impairment of the mother’s parenting capacity as a result of her contemplating that the children were to spend time with their father, as against the emotional or psychological risk to the children not having contact with their father, was ventilated and considered.  This is referred to in paragraph 23 of the Reasons for Judgment when summarising the mother’s submissions and again at paragraph 26.

   [9] (1986) FLC 91-758

9. Today, it has been submitted by the Applicant’s counsel that there is no evidence of the children being adversely affected by the months of no contact with their father.   However, it was also conceded that there is no evidence of the mother’s parenting capacity being impaired.  The two positions were, in my view, clearly considered by the Court in paragraphs 26 and 27 of the Reasons for Judgment.

10. Again, in my view, this ground of appeal, relates to conflicting assessments of matters of weight given at first instance.

11. Although it may be that the mother has some prospects of success in the appeal, these, in my view, are far outweighed by the need for these children to have a meaningful relationship with each of their parents.  I, once again, place weight on the submission made by the Independent Children’s Lawyer in relation to the need for that relationship to be rekindled and that physical time spent together is the only way to ensure it.

    The desirability of limiting the frequency of any change in a child’s living arrangements

12. There does not appear to be any issue relating to the change in these children’s living arrangements.  Prior to the hearing, they were living with their mother, which continued after the Court made its decision. 

13. The only matter that has changed for these children, and I agree that this is a significant change, is that they are now spending some time, which is a matter of hours on each occasion, away from their mother and with their father.  To date, this has only occurred on one occasion in a supervised contact centre, which will continue if a stay is not granted, and contact will increase to include unsupervised contact, but with a supervised handover, after about five weeks.

14. Some reference has been made to maintenance of the status quo.  A number of cases starting with Clemett & Clemett[10]  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 “where the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt with in 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.” 

    [10] (1981) FLC 91-013

15. Subsequent cases, including the Full Court decision of CSN & JBN[11], 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.  In this case, the one period of time that the children have spent with their father went well, despite the period of time of no contact.  In my view, the circumstances for these children prior to the interim hearing were far from satisfactory in that the mother had unilaterally removed them from the previous situation of shared care with the father. 

    [11] (1998) FamCA 176

16. The submission relied upon by the Applicant that the Court should infer from the satisfactory time spent together yesterday that the relationship between the father and the children is not as damaged as had been asserted and therefore the prior circumstances were satisfactory, equally supports the inference that it is the best interests of these children to be spending time with their father.

The period of time in which the appeal can be heard

1. I am informed that this appeal may be heard as early as the week commencing 30 September 2013, or possibly as late as the first week in December 2013. 

2. One of the matters the Court must consider in this regard is whether existing satisfactory arrangements support the granting of a stay for a short period of time.  As I have just noted, in relation to the issue of the status quo, in my view, the arrangements which involve the children spending no time with their father would not be satisfactory.

The best interests of the child

1. The final matter to consider is the best interests of the children, the subject of the proceedings.  The best interests of the children have been considered in relation to the preliminary assessment of the strength of the proposed appeal, the frequency of change in the children’s living arrangements and whether the arrangements that would be in place if a stay were granted are satisfactory.  Once again, having regard to both of the primary considerations and the additional considerations referred to in the interim decision itself, I am of the view that the best interests of these children will be met by them continuing to have the benefit of spending time with their father, especially as it is common ground that it is going well.  However, having regard to the certainty that appeal in relation to Order 2(c) would be rendered nugatory if a stay is not granted, and bearing in mind that this order involves unsupervised time spent together at a fairly early stage, I am of the view that it is appropriate to stay that Order.

2. Accordingly, the orders I make are as set out at the forefront of these Reasons for Judgment.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 30 August 2013.

Associate:     

Date:              4 September 2013