IRIS & COHEN
[2011] FamCAFC 77
•5 April 2011
FAMILY COURT OF AUSTRALIA
| IRIS & COHEN | [2011] FamCAFC 77 |
| FAMILY LAW - APPEAL – CHILDREN – Interim orders – Extremely young child – Where the mother moved prior to the birth of the child – Where there was no opportunity for the father to spend time with the child given the geographical distances – Where the Federal Magistrate ordered that the mother was to return to Townsville with the child – Where the mother appealed the interim orders and filed an application for a stay – Where the Federal Magistrate refused to stay the orders pending the outcome of the mother’s appeal. FAMILY LAW - APPEAL – CHILDREN – The mother submitted that the order requiring her to return to Townsville was “an imposition of enormous nature” and that the practicalities and other alternatives were not considered – Where it was submitted that in refusing the stay, undue weight had been given to the importance of the father spending time with the child prior to any hearing of the matter with detailed evidence – Where the appeal was from a discretionary judgment – Where the substantive appeal was seen to have considerable merit – Where the concern about the delay was remedied as the appeal can be heard in the May Full Court sittings – Where the Federal Magistrate erred in finding that the appeal would be rendered nugatory by the refusal to grant a stay – Where no real weight was given to the mother’s financial circumstances and the father’s position – Where the Federal Magistrate failed to consider that this was not a case where the child was having a relationship with the father and was unilaterally moved away from a settled environment – Where the Federal Magistrate failed to consider that there was no evidence indicating that the mother was not properly caring for the child – Where the Federal Magistrate should have after ordering an Independent Children’s Lawyer waited for the expert report and made no order until the first appearance of the Independent Children’s Lawyer – Where the Federal Magistrate failed to give no real consideration to the mother’s application that the matter be heard in Wagga Wagga – Appeal allowed. FAMILY LAW - COSTS – Costs of the appeal reserved to the Full Court for determination after the hearing of the substantive appeal. |
| Family Law Act 1975 (Cth) |
| Clemett & Clemett (1981) FLC 91-013 Gronow & Gronow (1979) 144 CLR 513 |
| APPELLANT: | Ms Iris |
| RESPONDENT: | Mr Cohen |
| FILE NUMBER: | TVC | 1134 | of | 2010 |
| APPEAL NUMBER: | NA | 21 | of | 2011 |
| DATE DELIVERED: | 5 April 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 5 April 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 11 March 2011 |
| LOWER COURT MNC: | [2011] FMCAfam180 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Middleton |
| SOLICITOR FOR THE APPELLANT: | Farrell Lusher |
| COUNSEL FOR THE RESPONDENT: | Mr Fellows |
| SOLICITOR FOR THE RESPONDENT: | Bevan & Griffin Solicitors |
Orders
The appeal NA 21/2011 be allowed.
Until the hearing and determination of appeal NA 15/2011, order 1 made by Federal Magistrate Coker on 18 February 2011 and order 2 made by Federal Magistrate Coker on 11 March 2011 be stayed.
The costs of the appeal NA 21/2011 be reserved to the Full Court.
IT IS NOTED that publication of this judgment under the pseudonym Iris & Cohen is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 21 of 2011
File Number: TVC 1134 of 2010
| Ms Iris |
Appellant
And
| Mr Cohen |
Respondent
REASONS FOR JUDGMENT
Introduction
A notice of appeal was filed by the mother on 18 March 2011 appealing the orders of Federal Magistrate Coker made 11 March 2011. The orders concern the refusal of the mother’s application for a stay of interim parenting orders made 18 February 2011, pending the outcome of that appeal.
There are eighteen grounds of appeal. In summary, the grounds allege that the Federal Magistrate erred in law and in fact in the exercise of his discretion in refusing to grant a stay of the previous orders.
Should the appeal be allowed, the mother seeks that order 1 of the 18 February 2011 orders, which required her to return to Townsville with the parties’ six month old child be stayed.
The order of the Federal Magistrate made on 18 February 2011, expressed to be “until further order” provided that the mother “return to Townsville with the child by 4pm 4 March 2011” (order 1).
In effect an extension of time was given on 11 March 2011 until 18 March 2011 when the Federal Magistrate refused the stay application.
The proceedings concern C Iris (“the child”), born September 2010. The child is approximately six months old. Both the mother and the father are 18 years of age.
The interim orders provided for the child to live with the mother and for the parties to have equal shared parental responsibility for the child. An order was made providing for the time the child was to spend with the father upon the mother’s return to Townsville. The time ordered is from 9.00am to 1.00pm each Saturday and Sunday and from 1.00pm to 5.00pm each Wednesday.
An order was made on an urgent basis that the child be independently represented and that the parents attend on a Family Consultant on 23 March 2011 to discuss arrangements for the child. The matter was adjourned until 11 April 2011 to consider the report and any recommendations made by the Independent Children’s Lawyer.
As mentioned an appeal was filed from the interim orders. An application for a stay of the orders was sought before the Federal Magistrate on 7 March 2011. The application was refused.
The mother has not complied with the order.
Although this appeal is confined to the refusal to stay the orders, it is useful to refer to the history of the matter, with reference to the proceedings and some of the factual circumstances asserted by the parties. The reasons of the Federal Magistrate on 18 February 2011 when the interim orders were made, together with the material before him will be referred to in considering this appeal.
The application before the Federal Magistrate – 18 February 2011
Much of the factual background is not in dispute with the notable exception of what happened at the end of the relationship and whether there were any arrangements between them in relation to the child’s future.
In the father’s affidavit he explained that the relationship commenced in October 2009 and that they separated on 5 February 2010. Throughout that time the parties lived at his parent’s residence in Townsville.
It can be seen that the child was born seven months after the parties’ separation. The father has not seen the child. In his affidavit he said that despite making numerous enquiries he was unable to find the mother, although he believed that she was in Wagga Wagga.
In the mother’s affidavit she explains that she moved from Townsville to a town near Wagga Wagga in July 2010. It is explained that the mother moved because she felt very stressed being in Townsville because of the behaviour of the father and his family. The mother feared that she may miscarry because of the stress caused by the father and his family. The mother previously suffered a miscarriage.
The mother had been living with her sister but when she moved there was no accommodation for the mother in Townville or other available support.
The mother maintains that she told the father she had moved, it was at first to a town near where she currently resides.
Her current circumstances are that she is sharing a house with the sister’s partner’s mother and has nearby the support of family. The mother is dependent on social services and received no money from the father since the birth of the child. The mother believes the father is unemployed. It seems he now has some government assisted employment.
The affidavit of the mother is otherwise devoted to explaining the considerable trouble and expense for her should she be required to travel to Townsville for a trial.
An affidavit was filed in reply by the father. Apart from observing that it takes issue with a number of assertions made by the mother, it is of little assistance to refer to it further in the context of this appeal.
The father filed an initiating application on 13 October 2010 where both final and interim orders were sought. In relation to interim orders, it was asked that the application asking for a location order be heard ex parte.
It was then asked that upon the mother being served with the application she return with the child to Townsville and be restrained from removing the child from that place.
A surprising application, in view of the child’s age and the absence of any allegations about the child’s safety, was that should the mother not return to Townsville a warrant be issued to take possession of the child and deliver her to the father.
Orders were sought for shared parental responsibility and that provided the mother return to Townsville, the child live with the mother. The orders asked in relation to time with the child that the father have each alternate weekend from 3.15pm Friday to 8.15am Monday and in the alternate week from Tuesday at 3.15pm to Thursday at 3.15pm. Orders were also asked to be made for special days.
The response filed by the mother on 25 January 2011 asked that the child live with the mother and that the child spend time with the father at all times that may be arranged at the Wagga Wagga Children’s Contact Centre. It was proposed that the parties make the necessary arrangements for this to commence as soon as possible.
It was also asked that the matter be transferred to the Federal Magistrates Court at Canberra, Wagga Wagga circuit list.
It was not known to the Federal Magistrate at the time of the interim hearing that the mother’s legal aid only extended to the application for transfer of the proceedings to Canberra. He was first informed of this at the stay hearing. No doubt this explains the limited material filed on behalf of the mother. In fairness to the Federal Magistrate it should be added that there was no application for an adjournment.
The Federal Magistrate did not deal with the transfer application at all.
Reasons of the Federal Magistrate
Substantive Appeal – 18 February 2011 – Interim Orders
The Federal Magistrate identified the decision he was to make in this matter as “an enormously difficult one”. He said “[i]t is in fact a situation where there is simply no best answer or right answer to be applied in relation to what arrangements should be made with regard to the parenting of this very young child”.
The Federal Magistrate was concerned that there was “no opportunity for there to be a relationship between the father and the child”.
His Honour said the mother’s proposal was “wholly impracticable” and a “nonsensical proposal”. He considered the mother’s proposal to be just as troubling to him as what he characterised as the “self-serving proposals put forward by the father”.
The Federal Magistrate continued:
At the moment there is little that gives me confidence that either parent can properly provide for and meet the needs of this child emotionally, intellectually or to show an appropriate and responsible attitude to the parenting of the child.
His Honour cautioned that “this child would need to be protected from the abusive behaviours of parents who cannot put the best interests of the child to the fore”.
It can be said that the Federal Magistrate was aware of the “enormous difficulties for the mother if she were to be required to return to Townsville”.
He explained that the mother is currently living with Ms P, who as he understood it, was “the mother of the partner of her sister”. He said:
There is no information whatsoever as to the quality of that relationship and of course, in any event, when one considers the objects of the Act, there is no comparison that could possibly be drawn between the importance of that relationship between Ms [P] and [the child], as opposed to the importance and significance that the law places upon the relationship between the father and the child.
In making orders in the best interests of the child his Honour made an interim order for equal shared parental responsibility. To facilitate this it was said to be necessary for the parties to be in the same locality. It was said at paragraph 43:
This child has a right to a meaningful relationship between her and each of her parents and extended family. That should be facilitated and of course it is the nub of the problem in relation to how that can be arranged in this matter.
The Federal Magistrate regarded this case as “not exactly a relocation case”. He did however make reference to the comments of Boland J in Morgan & Miles (2007) FLC 93-343, where her Honour said:
… As explained in Goode, the circumstances of the child at the time of the application or immediately before an unauthorised removal, particularly absent issues such as abuse or violence, may well be likely to be extremely relevant.
… It appears to me that the very difficult issues in cases involving a relocation, … make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis.
His Honour ordered that an Independent Children’s Lawyer be appointed and ordered the preparation of an urgent report. In the interim, the Federal Magistrate was of the view that “there must be an opportunity for this child to have some relationship with her father” for him the only way this could be realised was “for the mother to return to the place that she had been, prior to her departure”.
Refusal of stay- 11 March 2011
In support of the application for a stay the mother filed an affidavit explaining the difficulty for her in travelling to Townsville and remaining there for any period of time.
Her solicitor also filed an affidavit explaining that legal aid had been limited to the change of venue application. It was admitted that the mother’s affidavit was “deficient on a substantial number of issues regarding the current arrangements in place for the child”.
Much of the argument in the application for a stay presented to the Federal Magistrate and before me related to the practicalities of the order. Of significance, the solicitor for the mother wrote to the solicitor for the father on 21 February 2011, and asked how the father and his parents might assist. There was no reply to that letter.
The affidavit of the father and his parents, before the Federal Magistrate for the stay application, reveal at best, an offer of an airfare for the mother to travel to Townsville with the child and general enquiries about hers and the child’s needs. There is no evidence that the father and his family could or would provide accommodation other than with them or their family members. An issue in this case is the relationships between the mother and the father’s family.
In paragraph 5 the Federal Magistrate correctly summarised the argument on behalf of the mother. The Federal Magistrate then appropriately referred to Clemett & Clemett (1981) FLC 91-013.
Although there may be some agreement that the amendments to the children’s provisions of the Act, in particular s 60CA, means that the paramountcy principle consideration is not the same as discussed in Clemett the matters referred to by the Federal Magistrate were relevant to these proceedings and correctly identified.
The Federal Magistrate said at paragraph 10:
I intend to address those particular points in a somewhat different manner than would normally be the case. One would generally assume that it would be appropriate to deal first and foremost with the strongest or most significant of those grounds, the question of whether to not grant the stay would make an appeal nugatory, but the additional considerations that must be looked at in relation to this matter are not necessarily all that relevant, in relation to this determination.
After recognising that it could not be said that the appeal does not have merit, nor that there had been any delay in filing the appeal or that there was any question of bona fides it was said by the Federal Magistrate:
14.There is a concern that arises however, in relation to the length of time it would take for the appeal to be heard stemming, particularly, from the fact that there is simply no information whatsoever as to what that period of time might be. I inquired of counsel for the applicant mother what information, if any, might be available in that regard and he understandably indicated to me, that as he had only received his brief a matter of a day or so before, it was not an issue that had been able to be inquired into.
15.Whether, in fact, the appeal might therefore be able to be heard within a matter of weeks, within one or two months or much longer is unknown. What is, of course, of concern, however, is that without that knowledge there is a real possibility that if a stay were granted that there may be, in the alternative, no opportunity whatsoever for there to be involvement by the father, in the life of the child.
16.The fact is, and it was a significant matter in relation to the determination of the proceedings, that however it might have come about, the father had not even seen the child, the parents having separated before birth, and the mother having left Townsville before the birth of the child, such that if there were to be continued delay in relation to the hearing of the appeal and its determination, there may be a further significant period before there was any opportunity for any arrangements to be put in place with regard to the father’s involvement in the child’s life. It is one matter that is, of course, troubling in relation to the determination of these proceedings.
17.The real issue here is that strongest or primary ground, whether to not grant the stay would make the appeal nugatory. I struggle to a significant degree with that particular aspect of the matter because there are, similar to the situation that existed when hearing the interim application, very divergent and just as significant reasons attaching to the positions of both the mother and the father.
…
19.Balanced against that, of course, is the alternative consideration which is to say that the child has a right to a relationship with her parents and that is both of her parents, as well as other persons who would no doubt be significant in her life, including those members of the father’s family who would also seek to have a relationship with the child and therefore to grant the stay and allow there to be no real opportunity for there to be a relationship, is in fact facilitating a harm to the child.
…
21.There are certainly difficulties that arise in relation to this matter and there are certainly different issues to be considered. If one is to look, however, at that most significant of grounds, whether the failure to grant a stay would make even a successful appeal nugatory, one must be mindful of the fact that there is little in my assessment that would indicate that that would be the case here.
…
23.The father seeks to have the mother in the same locality as that in which the two of them were resident, at least until the mother departed, so that there can be an opportunity for the relationship between the father and the child to be fostered. I fail to see that there could be any effect upon a successful appeal that would result from the fact that the mother might be required to return to Townsville.
…
31.For the reasons, therefore, that I have given in relation to this matter, when considering the best interests of the child, I am of the view that to grant a stay in relation to this matter would not, in fact, be beneficial to the child and may in fact lead to greater issues of harm and concern with regard to the child. Accordingly, I dismiss the application in a case filed on 4 March 2011 and will extend the time for the mother and child’s return to Townsville to no later than 4.00pm on Friday, 18 March 2011.
Submissions of the mother
It is the submission on behalf of the mother that the order requiring the mother and the child to return to Townsville was “an imposition of enormous nature” and “that it would be more appropriate for there to be further opportunity for consideration of issues before the Court and certainly to allow the appeal … to be heard”.
In summary, it was submitted that in refusing the stay, undue weight had been given to the importance of the father spending time with the child prior to any hearing of the matter with detailed evidence.
As part of that submission it was said that the Federal Magistrate did not properly consider the practicalities for the mother or consider alternatives, including the father travelling to Wagga Wagga in the meantime.
Submissions of the father
Mr Fellows correctly referred to House v R (1936) 55 CLR 499 and the well known reasons of Stephen J in Gronow & Gronow (1979) 144 CLR 513. In relation to proper considerations in relation to the granting of a stay it was submitted that the Federal Magistrate correctly identified and applied those principles.
As Mr Fellows correctly submitted for the appeal to be allowed it would be necessary that there be demonstrated an error in the exercise of discretion by the Federal Magistrate.
Relevant Law
Nygh J in Clemett & Clemett (1981) FLC 91-013 said:
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. In this case we are satisfied that the appellant is appealing seriously on the merits of the case, that an appeal can be (and has in fact been) expedited within a reasonable time and that the child is properly looked after by the father. There is no indication that his Honour gave any consideration to those matters. If his Honour did, we are of the view he did not give sufficient consideration to them. For those reasons, we are of the view that his Honour exercised his discretion wrongly and consequently that the appeal should be upheld.
The Full Court (Coleman, May & Boland JJ) in EJK & TSL [2006] FamCA 806 considered that although the Clemett & Clemett decision preceded the Family Law Reform Act 1995 (Cth), and was decided at a time when the whole of Part VII of the Family Law Act 1975 (Cth) was subject to “the best interests test”, the principles espoused were still relevant to the consideration in that case as to whether the trial judge erred in the refusal to stay the orders pending the outcome of the appeal.
It can be seen from subsequent authority that the matters to be considered in an application for a stay are well settled (see Friscioni & Friscioni [2009] FamCAFC 43 especially at paragraphs 53-57).
Conclusion
Without considering the grounds of appeal and arguments any more than is necessary to hear the appeal in relation to the stay, it can be seen that the substantive appeal has merit.
The Federal Magistrate did not suggest otherwise. It seems that the Federal Magistrate was mostly concerned with the effect on the relationship between the father and the child of a delay in the hearing of the appeal. That is no longer a matter of concern.
The Appeals Registrar has indicated that the appeal can be heard in the May sittings in the Brisbane Registry. Of course, that puts a different complexion on the matter as the Federal Magistrate was rightly concerned that a substantial delay in hearing the appeal would have the effect that the father and his family may not see the child for some time.
The other basis for refusing the appeal seems to be the Federal Magistrate’s conclusion that even if the mother were ultimately successful this would not be rendered nugatory by the refusal to grant a stay.
This is an error. First the mother would be required to travel to Townsville with the child and stay there for an indeterminate time until a trial is heard and judgment delivered. In this case to deny the stay would make it both impossible and impractical to restore the situation because the mother and child would be obliged to move to Townsville and remain there for a substantial period of time. This is a “substantial factor” (see Trahn & Long (No. 2) [2008] FamCAFC 194).
Secondly, no real weight was given to the mother’s financial circumstances and the father’s position where in reality only a one way airfare was being offered.
In addition, as these were orders on an interim basis, as opposed to final orders made after proper evidence was considered, a stay should have been granted.
The Federal Magistrate in refusing the stay:
· Failed to consider that this was not a case where the child was having a relationship with the father and was unilaterally moved away from a settled environment;
· Failed to consider that there was no evidence indicating that the mother was not properly caring for the child;
· Should have after ordering an Independent Children’s Lawyer waited for the expert report and made no order until the first appearance of the Independent Children’s Lawyer.
· Gave no real consideration to the mother’s application that the matter be heard in Wagga Wagga.
It is clear that the Federal Magistrate gave inadequate weight to relevant considerations, particularly those of practicality.
In the circumstances of the case I am of the view that the appeal against the refusal to order a stay be allowed.
Costs
At the end of the hearing of the appeal submissions were made as to costs.
It was agreed that the costs be reserved to the hearing of the substantive appeal.
I certify that the preceding sixty five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 5 April 2011.
Associate:
Date: 5 April 2011
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