Howell and Garson (No.2)
[2016] FCCA 3050
•25 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HOWELL & GARSON (No.2) | [2016] FCCA 3050 |
| Catchwords: FAMILY LAW – Stay Application – appellant Father seeking a stay of Order 1 of Orders made on 7 October 2016 by His Honour Judge McNab preventing the child of the relationship from changing schools pending the outcome of his appeal – application dismissed. |
| Legislation: Family Law Act 1975, s.60CC Federal Circuit Court Rules 2001, r.1.05 |
| Cases cited: House v The King (1936) 55 CLR 499 |
| Applicant: | MR HOWELL |
| Respondent: | MS GARSON |
| File Number: | SYC 4888 of 2009 |
| Judgment of: | Judge Bender |
| Hearing date: | 21 November 2016 |
| Date of Last Submission: | 21 November 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 25 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bartfeld QC |
| Solicitors for the Applicant: | Kenna Teasdale Lawyers |
| Counsel for the Respondent: | Mr Kirkham QC |
| Solicitors for the Respondent: | Nicholes Family Lawyers |
ORDERS
The Father’s application for a stay of Order 1 of the Orders made
7 October 2016 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Howell & Garson (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
SYC 4888 of 2009
| MR HOWELL |
Applicant
And
| MS GARSON |
Respondent
REASONS FOR JUDGMENT
Introduction
On 7 October 2016 Judge McNab handed down final orders which varied the parenting orders relating to the parties’ daughter X born (omitted) 2006 (“X”) that had been made by consent in the Federal Magistrates’ Court on 10 November 2011.
Order 1 of the Orders made by Judge McNab on 7 October 2016 provides as follows:
1. Order 17 of the Orders made 10 November 2011 be discharged and in lieu thereof each party forthwith do all such acts and things necessary to enrol X (“X”) born (omitted) 2006 at (omitted) School and facilitate her attendance at that school from the commencement of Term 1 in 2017.
Order 17 of the Orders made 10 November 2011 provided for the parties to enrol X at (omitted) School (“(omitted)”).
On 2 November 2016 the Father filed a Notice of Appeal seeking that Order 1 of the Orders dated 7 October 2016 be set aside. The Notice of Appeal sets out five grounds of appeal which will be set out in detail in this judgment.
Contemporaneously with the filing of the Notice of Appeal, the Father filed an Application in a Case seeking that the operation of Order 1 of the Orders of Judge McNab dated 7 October 2016 be stayed pending the outcome of the Notice of Appeal.
Rule 1.05(2) of the Federal Circuit Court Rules 2001 (Cth) provide that if the Federal Circuit Rules are insufficient, the Family Law Rules apply. All rules relating to appeals are contained in the Family Law Rules 2004 (Cth) and are therefore applicable in this matter.
Rule 22.11(3) of the Family law Rules 2004 (Cth) provides that an application for a stay must be heard by the Judge of the Federal Circuit Court of Australia who made the Order under appeal. Rule 1.13 of the Family Law Rules 2004 (Cth) provides that an application for a stay may be heard by another judicial officer if the judicial officer who made the order under appeal is unavailable.
Judge McNab was unavailable to hear the application for a stay and accordingly the matter came before me for determination.
Evidence and Submissions
The Father relies on his affidavits sworn 31 October 2016 and 18 November 2016. He also relies on the written Outline of Argument prepared by Senior Counsel and the oral submissions made on his behalf by Senior Counsel.
The Mother relies on her Response to an Application in a Case and her affidavits sworn 16 November 2016 and 18 November 2016. She also relies on the written Outline of Submissions and Principles Relating to a Stay Application prepared by Senior Counsel and the oral submissions made on her behalf by Senior Counsel.
The Relevant Law
The principles relating to a stay application involving children’s orders are now well established and have been cited with approval by the Full Court in multiple cases including Tranh & Long [2008] FamCAFC 194, Cape & Cape [2013] FamCAFC 114, Blakely & Morrell (No.2) [2014] FamCAFC 226, Sheldon & Weir [2011] FamCA 2 and Sullivan & Tyler & Anor (No.2) [2011] FamCAFC 179.
In Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106, Bryant CJ, Boland and Chrisford JJ, set out the applicable principles of a stay application at paragraphs 17 and 18 as follows:
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.
It was submitted on behalf of the Mother that there should be no stay granted unless there is shown to be some quite exceptional or special circumstances to take the case out of the general rule that a Respondent is entitled to the fruits of his litigation.
Senior Counsel relied on the decision of Justice Brennan in Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No.1) (1986) 161 CLR 681 in support of this submission. In that matter His Honour was considering the inherent power of the High Court of Australia to grant a stay of proceedings to preserve the subject matter of litigation. His Honour noted this power to be an “an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted.”
However, His Honour stated:
“that when an application for special leave to appeal is made to this Court, a jurisdiction to stay may be exercised by the Court below and it is to that Court - the Court in which the matter is pending and which is familiar with the matter - that an application to stay should first be made.”
I am of the view that the decision of Jennings Constructions (supra) is confined to the rare cases where the High Court of Australia exercises its inherent jurisdiction to grant a stay, and in those matters exceptional or special circumstances are required. This is to be distinguished from a determination of a stay application by the Court which made the decision the subject of the stay.
The very clear law in stay applications before this Court is as set out in paragraphs 11 and 12 of this judgement and as enunciated by the Full Court. That law is that whilst the onus to establish a proper basis for the stay is on the applicant for the stay, it is not necessary for the applicant to demonstrate any ‘special’ or ‘exceptional’ circumstances.
The Grounds of Appeal
The Grounds of Appeal are set out in the Notice of Appeal filed by the Father on 2 November 2016 are as follows:
1.The learned Judge McNab failed to follow a defined legislative pathway.
2.The learned Judge gave insufficient weight to the evidence of the Husband.
3.The learned Judge failed to apply the principles in Rice and Asplund and approached the matter without regard to the fact that final orders were in place.
4.The learned Judge erred in placing the onus on the Husband to demonstrate why the proposed change of school was not in the child’s best interest.
5.The finding that “there was no submission made that the order in relation to the change of school could not be made by reason of the rule in Rice and Asplund was not open to His Honour.”
Consideration of the Relevant Considerations
The bona fides of the Applicant
It is submitted on behalf of the Applicant Father that there is no doubt about the Father’s bona fides in bringing this appeal. The Notice of Appeal was lodged within time and the Draft Index to the Appeal book has been filed by the Applicant.
It is submitted on behalf of the Father that there is a serious issue to be determined on appeal and that this appeal is not in any way a delaying tactic.
It is submitted on behalf of the Mother that the Father’s appeal is without merit and brought by the Father as he does not accept the appropriate exercise of discretion by Judge McNab in determining that X’s enrolment at (omitted) School is in her best interests.
In support of the submission that the appeal is nothing more than a delaying tactic, Senior Counsel for the Mother made reference to correspondence forwarded by the Father’s solicitors to the Director of Administration and Marketing at (omitted) School (“(omitted) School”) on 12 October 2016 which reads in part as follows:
“As to X’s enrolment, while we appreciate (omitted) School can administratively accept an enrolment for X based on the orders of 7 October 2016, his Honour’s Reasons for Judgment are yet to be published and our client has right of Appeal which he is likely to exercise once Reasons are published. Part of that Appeal process will be seeking a stay of the operation of the Orders of 7 October 2016.
In these circumstances we ask you to confirm that X will not be involved in any interview nor directly involved in any other arrangements for enrolment until the legal process is concluded. Our client, as a parent with responsibility for X, expressly does not consent to her being so involved. Note the Orders of
7 October 2016 do not authorise Ms Garson to proceed with X’s enrolment unilaterally.”I disagree with the Mother’s submissions that the correspondence from the Father’s solicitor to (omitted) School is evidence of a delaying tactic. If anything it confirms the Father’s strong belief that His Honour erred in his decision.
I accept that the Father genuinely holds a belief that the decision of the Court is wrong and I am therefore of the view that he is bona fide in bringing his appeal.
The weighing of the risk that an appeal may be rendered nugatory if the stay is not granted in this matter
It is submitted on behalf of the Father as follows:
·if a stay is not granted X will shift schools. This is particularly in light of what the Father submits is the Wife’s unseemly haste in moving to implement the decision of Judge McNab to immediately enrol X at (omitted) School in circumstances where Father had flagged his intent to appeal the decision at the time of its delivery;
·if the Appeal is successful the Order will be set aside by the Full Court or the matter will be remitted for rehearing;
·if there is to be a change to X’s school because the Full Court dismisses the Father’s Appeal then X should change school at that time and not earlier because she then faces the possibility of being required to change schools twice; and
·if the Appeal is successful, but X has been attending (omitted) School for some period of time prior to the decision of the Full Court, that lapse of time could mean that the Court determines that she should still remain at (omitted) School. It is argued that in these circumstances the Appeal would be rendered nugatory.
It is submitted on behalf of the Mother that a stay of Order 1 made by Judge McNab will effectively render Judge McNab’s order nugatory.
In the Mother’s affidavit sworn 16 November 2016 at paragraph 17 she deposes as follows:
It is submitted on behalf of the Mother that if X does not take up her place in (omitted) School at the commencement of term 1 in 2017 it is most unlikely that she would be offered a place at that school to commence in year 7 in 2018 in the event that the appeal of the husband is dismissed or, if successful, the Mother was successful at rehearing in having His Honour’s orders confirmed.
I do not accept the Father’s argument that a failure to grant a stay of Judge McNab’s order would render the Father’s appeal nugatory.
In the event the Father is successful in his Appeal and there is a reversal of His Honour’s decision either by the Full Court or at rehearing I am satisfied X would be in a position to return to (omitted) School.
However, the concern must be that a decision to stay the order will result in X never being able to attend (omitted) School.
The entitlement of the Wife to the benefit of the judgment and the balance of convenience and the competing rights of the parties
In her affidavit sworn 16 November 2016 (“the 16 November affidavit”) the Mother sets out the disadvantages to herself and X if the stay application is granted and X is unable to commence at (omitted) School in Term 1, 2017.
As referred to at paragraph 27 herein, the Mother deposes to the possibility of X not being able to start at (omitted) School at all in the event she does not commence in Term 1 of 2017. The school has advised that if X does not enrol now her position for Term 1 of 2018 will not be secured and she will be placed on a lengthy waiting list behind children of past students or children who have had their name down for (omitted) School since birth.
In paragraph 18 of the 16 November affidavit, the Mother deposes that she will not be able to get both X and her little sister Y to school on time in 2017 if X remains at (omitted). This was a factor that caused Judge McNab considerable concern in his considerations of this matter at first instance.
In paragraphs 20 of the 16 November affidavit, the Mother deposes as follows:
“Since Final Orders were made, I have already told X that she will be moving schools next year and X has attended an enrolment interview and tour of her new school. X is excited at the prospect of attending school with her sister Y. We had started to plan a send-off with her (omitted) School friends and X was excited to attend her school uniform fitting have the same school uniform as her sister Y who has been wearing her new school uniform around the home.”
In paragraph 21 of the 16 November affidavit the Mother deposes that on 24 October 2016 X returned from her time with the Father, and advised that the Father had told her that he was going to make sure she would stay at (omitted) and that since that time X has been putting her fingers in her ears and telling her “dad says I am not going” when she attempts to discuss X’s new school with her.
In paragraph 22 of the 16 November affidavit, the Mother deposes that on 3 November 2016 her solicitors received a letter from the Father’s solicitors which enclosed a copy of correspondence sent by the Father’s solicitors to (omitted) School. The letter stated in part:
“We understand that (omitted) is conducting orientation for 2017 year 6 classes this Friday and that nominees for junior school leadership positions, of which X is one, will be giving speeches in support of their nominations in the coming weeks. Given it is possible that X will remain at (omitted) School in 2017, we ask that you facilitate her participation in upcoming events with her fellow classmates.”
In paragraph 23 of the 16 November affidavit, the Mother deposes that letters of the type referred to above are causing even greater distress for X and encourage her to become more entrenched in the (omitted) School community which increases her confusion and her anxiety about moving schools.
It is submitted on behalf of the Father as follows:
·if a stay is granted, X will continue to attend the school which she has attended by agreement of the parties since 2012;
·X has expressed a strong desire to remain at (omitted) School and that this is a matter of great significance; and
·the balance of convenience favours the granting of the stay.
Does the Appellant have an arguable case?
It is submitted on behalf of the Father as follows:
·the appeal is genuine and that there are proper matters for argument before the Full Court.
·there are legal issues raised in the Notice of Appeal in relation to the applicability of the principle in Rice v Asplund (1979) FLC 90-725 and also issues raised about the correct approach of the Court to the application.
It is submitted on behalf of the Mother as follows:
·prima facie the Father’s appeal has no merit;
·there is nothing in the Father’s material in support of the Appeal to show that some error has been made in the exercise of the Judge’s discretion having regard to the specific matters set out in House v King (1936) 55 CLR 499.
I will briefly consider each of the grounds of the appeal.
Ground One: The learned Judge McNab failed to follow a defined legislative pathway.
It is submitted on behalf of the Mother that it is apparent from the judgment of Judge McNab that he properly directed himself to the requirements of the Family Law Act 1975 (Cth) (‘the Act’) being the paramount consideration in the making of a parenting order was the best interests of X and in so doing considered those factors of relevance under section 60CC of the Act.
Ground Two: The learned Judge gave insufficient weight to the evidence of the Husband.
It is submitted on behalf of the Mother as follows:
·this ground of appeal is vague. Senior Counsel for the Mother asked exactly what evidence of the Husband is being referred to;
·a perusal of the transcript clearly shows that the Husband’s evidence was placed properly before the Court and that it was a matter for the Judge as to whose evidence he preferred in determining this matter; and
·this ground of appeal is therefore without any merit.
Ground Three: The learned Judge failed to apply the principles in Rice and Asplund and approached the matter without regard to the fact that final orders were in place.
It is submitted on behalf of the Mother as follows:
·Judge McNab was fully cognisant of there being final orders made in this matter in 2011 and further made reference to the principles in Rice and Asplund on multiple occasions throughout the conduct of the hearing; and
·a perusal of the transcript shows that His Honour formed the view there had been a significant change in circumstances and in particular the increase in travelling time and the negative impact that it was having on X and on the Mother; and
·this ground of appeal is without merit.
Ground Four: The learned judge erred in placing the onus on the Husband to demonstrate why the proposed change of school was not in the child’s best interests.
It is submitted on behalf of the Mother as follows:
·no onus was placed on the Father to show that a change of school was not in the child’s best interest;
·the Judge determined the matter on the basis of the child’s best interests;
·it is entirely appropriate for a Judge to get to “the nub of the case” and to say what needs to be met, that is “this is the Wife’s case, what do you say?”
·this ground of appeal is therefore without merit.
Ground Five: The finding that “There was no submission made that the order in relation to the change of school not be made by reason of the rule in Rice and Asplund” was not open to His Honour.
It is submitted on behalf of the Mother that at no stage was it ever submitted on behalf of the Father that by reason of the rule in Rice v Asplund the Judge was prevented from making the Order that he did;
Senior Counsel further submitted that the closing submissions of the Father’s Counsel to Judge McNab support the above finding by Judge McNab. Counsel for the Mother made particular reference to page 96 of the transcript of evidence where Counsel for the Father states as follows:
Counsel: ..And your Honour, I have not (sic) opened the case by standing up and saying “This is a Rice and Asplund case.” I am not running it – you know – I am not running it into the ground on a Rice and Asplund argument.
His Honour: No. I appreciate that.
Counsel: But I am saying to your Honour, it has been working, why change it. That’s – which sort of Rice and Asplund.
It is submitted on behalf of the Mother that in these circumstances it is not open to the Father to seek to run the appeal on a point that was not taken at the trial (see Whisprun Pty Ltd v Dixon (2003) HCA 48 at paragraph 51).
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.
It is unknown when this appeal can be heard.
It is submitted on behalf of the Father that he is doing all things necessary to have this appeal expedited and heard as soon as possible.
Enquiries of the Appeals Registrar for the Southern Region reveal that it is as yet to be determined by the Chief Justice of the Family Court whether this appeal will be heard by a single Judge of the Full Court or by the total Full Court.
In the event that the matter is to be heard by a single Judge of the Full Court the matter may be heard in April 2017.
In the event the matter is to be listed before a Full Court, a Directions Hearing will not take place before February 2017 and the appeal can be heard no sooner than May 2017.
It is submitted on behalf of the Father that pending the determination of the appeal, X can continue to attend (omitted) School and not have her education disrupted by the possibility of two changes of school.
It is submitted on behalf of the Mother as follows:
·unless X accepts her enrolment to (omitted) School at the commencement of Term 1, 2017 there is a real possibility that X will not be able to attend that school even in the event she was successful in having the appeal dismissed; and
·there is no possibility of this appeal being dealt with, heard and the decision handed down in time for her to commence at (omitted) School at the commencement of Term 1, 2017.
The desirability of limiting the frequency of any change in the children’s living arrangements; and
The best interests of the child the subject of the proceedings are significant.
Whilst these matters are listed as separate principles to consider when determining a stay application, the Full Court in the matter of
Friscioni & Friscioni[2009] FamCAFC 43, held at paragraphs 55 to 57 as follows:
55. In cases where a stay is sought of parenting orders pending an appeal against those orders it has long been recognised that there are other factors that may be relevant. This was recognised by Kirby J in JRN & KEN v IEG & BLG (supra) who said at 1332: “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”. In other words it is important to consider the “consequences for a child of granting or refusing a stay”: EJK and TSL (No. 2) (supra) per the Full Court (Coleman, May and Boland JJ) and K and B (2006) FLC 93-288 at 32 per the Full Court (Warnick, May and Boland JJ).
56. In Clemett and Clemett (supra) Nygh J said at 76,175:
In determining whether a stay should be granted, the welfare of the child is the paramount consideration. It is especially desirable that the frequency of any changes in the custodial arrangements relating to the child should be limited as much as possible. 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.
57. In Trahn and Long (No.2) (supra) the Full Court included as “principles” the following:
the desirability of limiting the frequency of any change in a child’s living 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.
It may be that these are not separate factors but that in the context of consideration of the best interests of a child it is desirable to limit the frequency of changes in the living arrangements for a child.
There is something of a paradox when requiring a Judge when determining a stay application to consider the best interests of a child again on an application for a stay pending an appeal where there has already been a determination by the trial Judge of what is in that child’s best interests.
In the matter of Blakely v Morrell (No.2) [2014] FamCAFC 226 at paragraph 42, the Full Court held as follows:
42. In the circumstances of this case it was incumbent upon his Honour to give careful attention to the line of authority commencing with Clemett & Clemett (1981) FLC 91-013 which emphasises the importance of cases involving children to limiting the frequency of changes in their living arrangements.
I am of the view that a stay application involving children must be approached on the basis that the best interests of the children are the paramount consideration. When considering what is in the best interests of the child, the Court must consider those matters set out under section 60CC of the Family Law Act 1975 (Cth) (“the Act”) and in addition, the desirability of limiting the frequency of any changes in the child’s living arrangements.
There will be matters where the desirability of limiting the changes to a child’s living arrangements will be given great weight in the determination of the child’s best interests when determining a stay application and other matters where that issue will not be relevant. This factor is not to be given precedence over any of the other factors set out in section 60CC of the Act. Each matter will be determined on the particular circumstances that apply to that case.
It is submitted on behalf of the Father as follows:
·in this matter limiting the frequency of changes of schools for X is an important factor;
·there is no doubt that X’s education is progressing well at (omitted) School and that the only factors advanced by the Mother in her case centred around her own convenience and her desire for both of her children to be at the same school; and
·it would be contrary to X’s best interests if her education is disrupted by moving schools before the appeal is finally determined.
The Mother strongly refutes the submissions of the Father that the case centred around her own convenience rather than X’s best interests. It is submitted the basis for the Mother’s application was threefold, the negative impact on X of travelling in excess of two and a half hours a day in order to attend school including tiredness and inability to do homework, the desirability of having the siblings attend the same school and the practical impossibility for the Mother in being able to get both of her daughters to school on time if they were to attend different schools.
It is submitted on behalf of the Mother that it is not in X’s best interest for there to be a stay of the orders that would see her attending (omitted) School from the commencement of Term 1, 2017.
In the Mother’s 16 November affidavit at paragraphs 21 and 23 she deposes to the impact on X of being told that she will be moving schools next year and the confusion and anxiety that she is now suffering as a result of the question of her schooling next year being put in doubt.
As has been previously set out in this judgment, it is the Mother’s evidence that if X does not start at (omitted) School at the commencement of Term 1, 2017 there is a genuine risk that even if the appeal is dismissed, X will not be able to attend (omitted) School. The Mother has been advised by the Director of Admissions at (omitted) School that X’s enrolment would not be secured for Term 1 of year 7 and that X would be placed on a lengthy waiting list behind children of past students and children who have had their names down for a position in year 7 at (omitted) School since birth.
It is therefore submitted on behalf of the Mother that:
It cannot be seen to be in X’s interests to grant a stay of the current order as it would effectively mean that she would not be able to attend (omitted) School with her little sister. Further, in the event the appeal is upheld there would be nothing to prevent X returning to (omitted) School and that whilst that may cause some disruption she has sufficient connection to that school community that she would manage a return to (omitted) School without difficulty.
Conclusion
In this matter I am satisfied that the Father’s appeal is bona fide.
It is submitted on behalf of the Father, that the failure to grant a stay will render the Appeal nugatory as X already attending (omitted) School may influence the Full Court not to interfere with the decision of the Judge at first instance, even if he has been found to be in error. It is further submitted that if the matter was remitted, a Judge on a rehearing would be presented with a fait accompli.
I do not accept the submissions of the Father in that regard. In the event the appeal is upheld and the matter has to be re-determined, it would be done so on its merits and on the basis of what is in the best interests of X.
It is the Mother’s evidence, which is not challenged, that unless X takes up her enrolment at (omitted) School commencing Term 1, 2017, X is unlikely to gain a place at the commencement of year 7 in 2018 as preference is given in year 7 to the children of former students or those who have been on a waiting list since birth to commence at the school at that time.
It is therefore submitted on behalf of the Mother that the granting of the stay would render the appeal nugatory in that if the appeal was unsuccessful, the orders of Judge McNab that X attend (omitted) School could not be put in place.
It is submitted on behalf of the Mother that prima facie the appeal has no merit. The Mother submits there is nothing in the Appellant’s material in support of the appeal that shows some error has been made in the exercise of the Judge’s discretion.
Senior Counsel for the Mother set out in his written submission a summary of the principles referring to an appeal against the exercise of a judicial discretion enunciated in the well-known cases of House v King (1936) 55 CLR 499 and Lovell v Lovell (1950) 81 CLR 513 as follows:
“If a Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellant Court may exercise its own discretion in substitution for his if it has the material for so doing. It might not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellant court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance…”
It is submitted on behalf of the Mother:
·there is nothing in the material filed by the Father in support of his appeal or his application to stay proceedings, in the judgment delivered by Judge McNab or in the transcript of evidence that shows that His Honour in any way erred in the exercise of his discretion having regard to the principles referred to above;
·whilst the principles enunciated in Rice v Asplund (1979) FLC 90-725 were mentioned during the hearing of the matter before Judge McNab, the Applicant Husband did not specifically seek to rely on the principle enunciated in that case; and
·the absence of reliance on such principles in the proceedings appealed from is a significant fact which an appeal Court will take into account in determining whether Judge McNab’s findings should be set aside.
In these circumstances the Mother’s submits that the Father does not put before the Court an error of law that is appealable.
It is submitted on behalf of the Father that it is not the role of a Judge hearing a stay application to determine the appeal but rather to be satisfied that the Appellant has an arguable case. The submissions made on behalf of the Mother in relation to the Father’s various grounds of appeal clearly indicate that there is an arguable case for determination by the Court of Appeal.
Whilst it is clear that there are strengths and weaknesses in relation to the various grounds of appeal set out in the Notice of Appeal, I am satisfied that the Father has an arguable case.
At this time, the question of when this appeal will be heard is unknown. At best it will be heard in the first half of 2017. It is therefore not unrealistic to anticipate that the outcome of the appeal will not be known until the second half of 2017.
When considering the question whether it is in X’s best interests that a stay be granted, I must considered section 60CC factors and the desirability of limiting the frequency of change for X.
Clearly, Judge McNab formed the view that it was in X’s best interests that she be permitted to change school from (omitted) to (omitted) School.
The Father’s disagreement with this decision was apparent from the moment the decision was handed down. His Counsel’s indicated to Judge McNab at the time of the judgement that his client would be appealing his decision and seeking a stay even though at that time he and his legal advisors had not had the benefit of receiving and reading His Honour’s written reasons for his decision.
I note that neither party sought to place evidence of X’s wishes on the question of her schooling before Judge McNab.
In the Father’s affidavit sworn 18 November 2016 he deposes to X being upset at the prospect of changing schools and that X has told him that she does not want to change schools.
It is submitted on behalf of the Father that no irreparable harm will be done to X if she is allowed to remain at her current school until the matter can be dealt with by the Full Court. Further it is argued by the Father and there is a real risk that X’s education will be disrupted if she is required to change schools on multiple occasions.
It is therefore submitted on behalf of the Father that it is in X’s best interest the stay be granted so that there is no possibility of X being required to change schools on more than one occasion in the event that the appeal is unsuccessful.
After His Honour’s decision, the Mother advised X that she would be changing schools and took all steps to enrol X at (omitted) School. The Father then told X that she would not be changing schools. I accept the Mother’s evidence that this has created considerable anxiety and confusion for X and is preventing her from accepting the change of schools.
I am satisfied that if a stay is not granted and there is a determination ultimately that it is in X’s best interests that she be educated at (omitted), she will be able to return to that school.
I have formed the view that it is in X’s best interest that a stay not be granted as it will place her in a greater position of ongoing confusion and anxiety in relation to her future education.
I am satisfied that if a stay in this matter is granted then the appeal process will in all likelihood result in X not being able to attend (omitted) School at all because there will not be a place available to her by the time an appeal is finalised.
In all these circumstances the Application for a Stay of Order 1 of the orders made by Judge McNab on 7 October 2016 will be dismissed and that the order should remain in full force and effect.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Bender
Date: 25 November 2016
Key Legal Topics
Areas of Law
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Civil Procedure
Legal Concepts
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Stay of Proceedings
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Appeal
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