Hutcheson and Meli (No 2)
[2016] FamCA 646
•10 August 2016
FAMILY COURT OF AUSTRALIA
| HUTCHESON & MELI (NO 2) | [2016] FamCA 646 |
| FAMILY LAW – STAY – where the father seeks a stay of orders permitting the mother to relocate to the United Kingdom – where the application is opposed – where consideration is given to the principles to be applied in determining an application for a stay – where the application is dismissed. |
| Family Law Act 1975 (Cth) |
| Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 |
| APPLICANT: | Mr Hutcheson |
| RESPONDENT: | Ms Meli |
| FILE NUMBER: | ADC | 2177 | of | 2014 |
| DATE DELIVERED: | 10 August 2016 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 5 August 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Anderson |
| SOLICITOR FOR THE APPLICANT: | Duncan Basheer Hannon |
| COUNSEL FOR THE RESPONDENT: | Ms Lewis |
| SOLICITOR FOR THE RESPONDENT: | Clelands Lawyers |
Orders
The Application in a Case filed by the father on 26 July 2016 is dismissed.
The stay of paragraph 28 of the orders of 25 May 2016 is revoked.
Paragraph 28 of the orders of 25 May 2016 is amended to provide for payment to be made by 4.00 pm on 12 August 2016.
Paragraph 28 of the orders of 25 May 2016 is further amended to include release of funds upon further order of the Court for enforcement of any orders following the decision of the Full Court.
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 Hutcheson & Meli (No 2) 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 ADELAIDE |
FILE NUMBER: ADC 2177 of 2014
| Mr Hutcheson |
Applicant
And
| Ms Meli |
Respondent
REASONS FOR JUDGMENT
Introduction
By Application in a Case filed by the father on 26 July 2016, the father Mr Hutcheson, sought that many of the orders made by me on 25 May 2016 be stayed. The mother, Ms Meli opposed the stay.
Background
Following a lengthy trial in February 2016 I made final orders on 25 May 2016 for reasons which were then published. The orders made provided for the mother to have sole parental responsibility for the child B born in 2011 (“the child”) and that the child live with the mother.
There were specific orders made setting out the time the father was to spend with the child, whilst the child remained in Australia and when the child moved to reside in the United Kingdom. Specifically, the orders provided that the mother be at liberty to relocate the child’s residence to the United Kingdom after 17 August 2016 provided that at least 10 days prior to departure the mother provide to the father’s solicitors $100,000 to be held in an interest bearing trust account which was not to be released to the father save and except for travel costs if the mother failed to provide for the travel costs as otherwise specified in the orders or upon further order of the Court relating to any application for enforcement of the orders.
The background to the relationship between the parties and the child is set out in detail in the reasons for judgment I delivered.
At the final hearing before me the father sought orders which, inter alia, required the child to live with the mother in Australia until December 2020. The mother sought orders that she be able to relocate with the child after 17 August 2016.
My reasons for making the orders are set out in detail in the 40 page judgment delivered on 25 May 2016.
At the trial, and at the hearing of the stay application, the parties were represented by counsel.
Judgment was delivered on 25 May 2016. The father’s appeal was filed on 22 June 2016. This is only just within the timeframe provided by the rules.
The Application in a Case in which the stay has been sought by the father was not filed until 26 July 2016. This is two months after the delivery of the judgment and only three weeks before the date upon which the mother was granted permission to relocate with the child to the United Kingdom.
Relevant documents in relation to stay
The Court has received a copy of the Notice of Appeal filed by the father on 22 June 2016.
The Application in a Case filed by the father on 26 July 2016 sought an urgent hearing and that paragraphs 3, 7, 9, 10, 11, 12, 13, 21, 22, 24, 27 and 28 of the orders made by me be stayed “…until further order or in any event, pending the hearing and determination of the Notice of Appeal filed by the Appellant on 22 June 2016.” Paragraph 3 apparently refers to costs and states:
That the Respondent pay the costs of the Applicant and of the Application referred to in paragraph 1 above.
In support of the application the father filed an affidavit on 26 July 2016. That affidavit annexes a copy of the Notice of Appeal. It refers to a Notice of Appeal “from paragraphs 1 to 28 (inclusive) of the Orders.”
Paragraph 4 of the affidavit states as follows:
I seek a stay of the operation of Justice Dawe’s Orders permitting the Mother to be at liberty to relocate the child’s residence to the United Kingdom after 17 August 2016 on the grounds that:-
4.1 The appeal is likely to be rendered nugatory if a stay of these proceedings is not granted. In particular, if the Mother is permitted to relocate the child’s residence to the United Kingdom after 17 August 2016 then it is foreseeable that lengthy and complicated proceedings will follow in the event that my appeal is successful; and
4.2 It is not desirable for the child’s principal place of residence to be changed prior to the ultimate determination of the appeal.
The affidavit also refers to the father’s “understanding” in relation to factors he says relate to the vote in the United Kingdom in relation to leaving the European Union. At the hearing before me it was conceded that these allegations by the father were not factors relevant to the application for the stay.
The mother filed the Response to an Application in a Case on 3 August 2016 in which she sought the dismissal of the father’s Application in a Case. She also sought the following orders:
2. That with respect to the Order made on 25 May 2016, the mother forthwith do all acts and things to obtain from a Court of competent jurisdiction in the United Kingdom recognition pursuant to Article 24 or registration pursuant to Article 26 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, signed at The Hague on 19 October1996.
3. That the mother provide an undertaking to this Honourable Court that she shall return the child, [B], born on … 2011 to Adelaide, Australia in the event that the Appeal by the father is successful and otherwise an order is made by this Honourable Court for the return of the child to Australia.
At the hearing before me on 5 August 2016 I received the undertaking of the mother dated 5 August 2016 which stated:
I will return the child, B born on … 2011, to Adelaide, Australia in the event that the Appeal by the father, [MR HUTCHESON], (SOA 48 of 2016) is successful or an Order is made either by the Full Court of the Family Court of Australia or the Family Court of Australia for the return of the child to Adelaide, Australia.
In support of the mother’s response, the mother relied upon her affidavit filed on 3 August 2016 and the affidavit of Ms AA also filed on 3 August 2016.
The mother’s affidavit sets out in detail the events which have occurred since judgment was made on 25 May 2016. These included the removal of the child from the Airport Watch List in accordance with my orders, the enrolment of the child to a school in Suburb BB, UK commencing on 1 September 2016, the sale of the family home in which the mother and child were residing (with settlement due to take place on 31 August 2016) the steps the mother has taken for the removal of her furniture and household goods and the purchase of flights from Adelaide to the UK departing on 17 August 2016.
The mother’s affidavit indicates that the mother and child will be required to find other accommodation in Adelaide whilst the appeal is heard and determined, if the stay is granted.
The affidavit sets out that the mother first became aware of the Notice of Appeal when her solicitors were served on 1 July 2016. She did not become aware of the stay application until 28 July 2016, when her solicitors were served.
The affidavit also sets out the mother’s concerns about the impact of the possible lengthy delay which might arise from the father’s appeal.
The affidavit of Ms AA, a law clerk employed by the mother’s solicitors, refers to research conducted by her concerning the number of days between judgments and appeal judgments.
It also sets out calculations relating to the number of days which the father would spend with the child in Australia and the United Kingdom. These calculations are not a significant factor when considering the stay application.
The research in relation to the delay between judgment and appeal judgment is to a certain extent offset by the fact that this appeal has been listed for hearing before the Full Court in October 2016. The father’s counsel referred to “guidelines” which provide for decisions to be delivered within three months of the hearing where possible. The Court has expressed an “aim” for 75 per cent of judgments being delivered in less than three months. I take into account that there is a possibility that the judgment of the Full Court may not be delivered within that time.
Submissions
At the hearing before me on 5 August 2016 the father was represented by Mr Anderson, who was also counsel for the trial. Similarly, the mother was represented by Ms Lewis, who was also counsel at the trial. I received written submissions from both counsel and heard detailed oral submissions before reserving judgment on 5 August 2016.
Pending delivery of my judgment paragraph 28 of the orders made on 25 May 2016 was stayed. This was to overcome any possible difficulties of the monies being required to be paid 10 days before the mother’s departure which was planned for 17 August 2016.
The Law
Counsel for the father relied upon 14 authorities which I have taken into account. Similarly, I have taken into account the authorities referred to by counsel for the mother, which include four of those relied upon by counsel for the father.
Discussion and findings
The father appropriately conceded that filing of the Notice of Appeal itself does not operated as a stay and that the onus is upon the appellant to establish the basis for the stay.
Both parties relied upon the Full Court authority of Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106.
In particular paragraph 18 of that judgment states:
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 is also useful to refer to the authority of Trahn & Long (No 2) [2008] FamCAFC 194, which has been relied upon in subsequent decisions including Sheldon & Weir (Stay Application) [2011] FamCAFC 5 and the decision of the Full Court (Finn, Thackray and Aldridge JJ) in Cape & Cape [2013] FamCAFC 114.
Paragraph 21 of the Full Court judgment refers to the principles applied by the trial Judge in considering the question of the stay of the relocation order and clearly approved the same.
The father’s affidavit filed in support of the application for the stay and the submissions on his behalf by counsel relied primarily upon the arguments that the appeal would be rendered nugatory if the stay was not granted and that it would not be desirable for the child’s principal place of residence to be changed prior to the determination of the appeal. The submissions of counsel referred to the change in the child’s circumstances which would occur if the stay were not granted in that the child would be permitted to travel to the United Kingdom with the mother and the reduction of the frequency of the time the child spent with the father.
Under the heading “The rights of the child” counsel for the father also relied upon the authorities which referred to the desirability that the frequency of any changes in the child’s custodial arrangements should be limited as much as possible. This is not a matter in which the “custodial arrangements” are changing. It was always conceded that the child should live with the mother. As a result of my orders the father will not spend time with the child each alternate weekend.
I must take into account the impact that a stay would have upon the welfare of the child. The mother and child will be required to find alternative and temporary accommodation in Adelaide for an unknown period of time, whilst awaiting the progress of the appeal and the delivery of the judgment in the appeal.
This would disrupt the current arrangements for the child to commence school in the UK on 1 September 2016.
The authorities clearly refer to the desirability of limiting the frequency of any change in the child’s living arrangements. In this case however the stay, if granted, would risk further disruption to the child’s living arrangements.
In considering these factors I take into account that the mother was aware of the appeal being lodged when she took steps to sell her home and made arrangements to travel to the United Kingdom. She was and is entitled to presume the judgment was correct.
Another factor to be considered is referred to in the decision of the Full Court is any undue delay in bringing the application for a stay. The Court did not receive any explanation for the father’s delay in bringing the application for the stay.
Another of the significant factors to be considered in this matter is whether the refusal of the stay will render the appeal nugatory. If the stay is not granted the mother will be free to travel to the United Kingdom.
In Champness & Hansen (No 2) [2008] FamCA 1012 Justice Burr (as he then was) refers to the Oxford Dictionary definition of “nugatory” as “trifling, worthless, futile, inoperative, not valid”.
I accept the submissions on behalf of the mother that the appeal would not be rendered nugatory unless there is a risk that the mother would not return to Australia with the child if the appeal is successful. The mother has provided the Court with an undertaking.
The mother’s undertaking, the history of the mother’s behaviour in the past and the provision of paragraph 28 of the orders made on 25 May 2016, satisfy me that the appeal would not be rendered nugatory unless the stay were granted.
The father alleges that the failure to grant a stay will break the continuity of time he now spends with the child. This is clearly the case as is set out for reasons given in the original judgment, however, the father has not established that the orders will severe his relationship with the child.
It is also necessary to consider the grounds of the appeal and whether on a preliminary assessment of the proposed appeal, the appellant has an arguable case. Connected to this ground is also the consideration of the bona fides of the applicant for the stay. The mere filing of an appeal is insufficient to grant a stay. The person who has obtained the judgment is entitled to the benefit of that judgment and to presume that it is correct.
The detailed grounds of appeal set out in the Notice of Appeal are substantially based upon alleged errors of assessment of the evidence and the weight given to various matters.
It is not possible for me to determine in advance the likely outcome of the appeal. Notwithstanding the submissions of the mother that the “appellate court should be slow to overturn a primary judge’s discretionary decision on grounds \ which only involve conflicting assessments of matters of weight” (Gronow v Gronow (1979) 144 CLR 513 at paragraph 10) I accept that the grounds of appeal may set out an arguable case.
Conclusion
The accepted principles indicate that the onus is upon the father to establish the proper basis for the stay, but it is not necessary for these to be special or exceptional. Similarly, the mother was entitled to presume the judgment was correct and that she was entitled to the benefit of that judgment. The delay by the father in bringing the application for a stay is a factor which needs to be considered in this matter, particularly bearing in mind the arrangements which the mother has made in compliance with the orders of this Court which will have an impact upon the living arrangements of the mother and the child.
The Court does not consider that there is any lack of bona fides of the father. The father may have an arguable case in his appeal.
The significant factors in this matter are the desirability of limiting the frequency of any change in the child’s living arrangements and whether the appeal will be rendered nugatory.
The child’s living arrangements and the past changes to those living arrangements are set out in the judgment. There will now be significant changes to the child’s living arrangements whether the stay is granted or not. The previously existing living arrangements cannot be maintained. If the stay is granted the child and the mother will be required to make temporary living arrangements in Adelaide. If the stay is not granted the mother and child have appropriate accommodation already arranged for them in the United Kingdom.
As indicated above I do not consider that the stay is necessary to prevent the appeal becoming nugatory. The mother has given her undertaking that she will return the child to Adelaide if the appeal is successful.
When considering the length of time that may transpire before an appeal decision will been given, I have taken into account the prompt listing of the matter for hearing in October this year, but I am unable to assess when the judgment of the Appeal Court will be delivered.
Paragraph 28 of that order already provides for the sum of $100,000 to be paid to the father’s solicitors to be held on trust on conditions which include the monies being made available to the father following further orders of the Court if it is necessary to bring an application to enforce these orders.
Weighing up each of the factors and considering the best interests of the child as a significant matter, I am satisfied that the child should be permitted to travel to the United Kingdom with her mother in accordance with the orders made on 25 May 2016.
I am not satisfied that the father has established the basis for the stay.
The Application in a Case is therefore dismissed.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 10 August 2016.
Associate:
Date: 10 August 2016
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