Ivey and Allport (No.2)

[2014] FCCA 2241

FEDERAL CIRCUIT COURT OF AUSTRALIA

IVEY & ALLPORT (No.2) [2014] FCCA 2241

Catchwords:
FAMILY LAW – Stay – application for stay pending determination of parenting appeal – whether the mother’s appeal would be rendered nugatory if a stay is not granted – whether the mother has an arguable case on appeal – consideration of limiting the frequency of changes in children’s living arrangements – best interests of the children – return of children to father to coincide with time the children would have been returned to his care during school holidays.

Legislation:

Family Law Act 1975 (Cth) ss.60CA, 60CC

Cases cited:
Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Ivey & Allport [2014] FCCA 1887
K and B [2006] FamCA 848; (2008) 37 Fam LR 1; (2006) FLC 93-288
Kelly & Kelly (1980) 6 Fam LR 741; (1981) FLC 91-007

Applicant: MS IVEY

Respondent: MR ALLPORT

File Number: SYC 2129 of 2014

Judgment of: Judge Scarlett

Hearing date: 17 September 2014

Date of Last Submission: 17 September 2014

Delivered at: Sydney

Delivered on: 19 September 2014

REPRESENTATION

Counsel for the Applicant: Mr Maurice

Solicitors for the Applicant: David H. Cohen & Co

Counsel for the Respondent: Ms Oakley

Solicitors for the Respondent: Cooper Grace Ward Lawyers

ORDERS

1. The Application in a Case filed on 3 September 2014 is dismissed.

2. The Applicant Mother is to return the children [X] and [Y] to the care of the Respondent Father by 5:00pm on Saturday 27 September 2014.

3. The Orders of 19 August 2014 are otherwise confirmed.

IT IS NOTED that publication of this judgment under the pseudonym Ivey & Allport (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2129 of 2014

MS IVEY

Applicant

And

MR ALLPORT

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application in a Case seeking a stay of a decision of this Court made on 19^th August 2014 ordering the Applicant Mother to return the parties’ two children to the care of their father, with whom they had been living, and transferring the proceedings to the Brisbane Registry of the Court. The Applicant has appealed against that decision and seeks a stay of the orders until the Appeal can be heard.

2. The Respondent Father opposes the Application for a stay.

The Decision and the Appeal

1. The decision that is the subject of the Applicant’s Appeal was made on 19^th August 2014, after an interim hearing conducted that day (Ivey & Allport[1]). The following Orders were made:

   [1] [2014] FCCA 1887

   1. The proceeding is transferred to the Brisbane Registry of the Court and is to be listed before Judge Jarrett on 9 October 2014 at 9:30 am.

   2. An interpreter in the Arabic language is required for the assistance of the Respondent Father on the next occasion.

   3. The interests of the children [X] born [in] 2005 and [Y] born [in] 2009 are to be independently represented by a lawyer under the provisions of section 68L of the Family Law Act 1975 and Legal Aid Queensland is requested to arrange this representation.

   4. Within fourteen (14) days of the date of this Order the parties must forward to Legal Aid Queensland for the use of the Independent Children’s Lawyer when appointed copies of all Applications, Responses, affidavits and other relevant documents.

   5. The Independent Children’s Lawyer is granted leave to issue up to ten (10) subpoenas without charge.

   6. The Applicant Mother is to return the children [X] and [Y] to the care of the Respondent Father within fourteen (14) days.

   7. The children [X] and [Y] are to live with the Respondent Father until further Order.

   8. The parties are to have equal shared parental responsibility for the children [X] and [Y] until further Order.

   9. UNTIL FURTHER ORDER the Applicant Mother is to spend time with the children [X] and [Y] for half of each of the Queensland school holidays and such other times as the parties shall agree.

2. On 3^rd September 2014 the Applicant lodged her appeal. There are 16 grounds of appeal listed in the Notice of Appeal:

   1.That in determining whether the matter ought to be transferred to Brisbane Registry His Honour ought not to have transferred the matter as there was not sufficient evidence before him to satisfy the requirements of Rule 8.01 of the Federal Circuit Court Rules.

   2.That His Honour ought not to have proceeded to transfer the matter without evidence of the availability of Federal Circuit Court Resources in Brisbane; in particular:

   a.  How long it would take for an Independent children’s Lawyer to be appointed;

   b.  How long it would take for the preparation of a Family Report;

   c.  How long it would take for there to be an interim hearing thereafter;

   d.  What capacity did the Brisbane Registry have to deal with the matter urgently.

   3.That his Honour erred by making findings as to the financial circumstances of the Father when the Father had no evidence before the Court of same.

   4.That his Honour erred in finding that the Father was not in a position to be making regular visits to Sydney as there was no evidence of his financial circumstances.

   5.That his Honour ought not to have found that the Father had a grant of legal aid covering only the day of the hearing or at all.

   6.That his Honour ought not to have disregarded submissions made on behalf of the Father that were not supported by any evidence which included:

   a.  The availability of Federal Circuit Court resources in the Brisbane Registry as referred to in the preceding ground;

   b.  The time required to appoint an independent children’s lawyer in Brisbane;

   c.  The Father’s financial circumstances;

   d.  The Father’s comprehension of the English language.

   7.That his Honour failed to take into account the Mother’s inability to fund for a hearing in Brisbane the travel expenses of each of the 11 witnesses (identified on page 15 of the transcripts at point 25).

   8.That prior to making interim parenting orders His Honour ought to have considered the recommendation in the Child Dispute Conference Memorandum that the children’s parenting arrangements needed to be determined by an assessment of the risk to the children in either household by reference to preschool records, medical and police and child protection records both in Sydney and Brisbane.

   9.That his Honour failed to take into account the opinion of [X]’s clinical psychologist Dr M about his unwillingness to be separated from his Mother and the treating psychologist’s concern that such separation would see a deterioration in the child’s psychological health and reverse the gains the child had made pursuant to his mental health treatment plan to date.

   10.That his Honour ought to have found that the Mother retained the children in her care after the 2013 Christmas school holidays to ensure that they received proper medical treatment and therapy to address the serious and urgent medical and behavioural problems that had been identified by their treating professionals.

   11.That his Honour failed to have regard to reports from the children’s treating health professionals referred to in Annexure “A” and the other Annexures identified in paragraphs 80 and 81 of the Mother’s affidavit sworn 7 April 2014.

   12.That his Honour failed to have regard to reports from the children’s treating health professionals referred to in Annexures “A” to “E” and “I” of the Mother’s affidavit sworn 14 August 2014.

   13.That his Honour ought to have found based on the Father’s own evidence that the Father had taken no steps of any significance to address the medical and behavioural problems of the children prior to them coming into the Mother’s care.

   14.That his Honour ought to have found that there was no proper explanation for (the) Father’s delay in bringing proceedings in Court.

   15.That his Honour ought to have rejected the affidavit of the Father sworn 15 August 2014 (which raised new issues) on the grounds that the Mother had not been accorded procedural fairness in that she had not had sufficient time to respond to it.

   16.That his Honour failed to give sufficient reasons for his decision.    

The Application for a Stay

1. The Applicant filed her Application in a Case seeking a stay on 3^rd September, the same day as the Notice of Appeal was filed. The relevant Order sought in the Application is:

   3. That the Interim Orders made by his Honour Judge Scarlett on 19 August 2014 be stayed pending the hearing of the Mother’s Appeal against those Orders.

2. The Application was supported by an affidavit of the Applicant sworn the same day. In her affidavit, the Applicant deposed to a number of matters upon which she claimed that the Respondent’s Counsel who had appeared on that day had made submissions to the Court which were factually incorrect and led the Court into factual error. Whilst a determination about those matters is a matter to be decided on appeal, it is appropriate to set out a summary of those matters for the purpose of determining whether a stay should be granted.

3. The topics covered by the affidavit are:

   a)Whether or not the Father was legally aided on the day;

   b)Whether or not the Father would be unable to apply for legal aid if the proceedings remained in New South Wales;

   c)Whether or not the Father is of limited means;

   d)Whether or not the Father’s understanding of the English language is so limited that he was hampered in bringing an application to the Court;

   e)Whether or not the Father had been negotiating with the children’s school and other counsellors;

   f)Whether or not the Father had been appropriately managing the children’s behavioural, psychological and medical issues; and

   g)Her own limited financial situation.

4. The Applicant further deposed:

   For all these reasons set out in this my affidavit I ask this Honourable Court to grant the stay and the related orders that I seek. The proposed orders include proposals for interim orders that the father spend time with the children for one weekend each month in Sydney. I sought these orders on 19 August, 2014.

5. The Respondent filed a Response to the Application in a Case seeking the following orders:

   1. The application in a case filed by the Mother dated 3 September 2014 be dismissed.

   2. The Mother pay the Father’s costs of and incidental to the application on an indemnity basis as agreed and failing agreement then as assessed.

6. The Response is supported by an affidavit affirmed by the Respondent on 11^th September 2014. In his affidavit the Respondent set out the procedural history of the matter as he understood it. He also annexed to his affidavits copies of emails between his solicitors and the Applicant’s solicitors on the subject of the Mother returning the children to his care in accordance with the Orders of 19^th August, and the advice from the Applicant’s solicitors that the Applicant was planning to Appeal and that she was seeking a stay of the Orders pending the hearing of the Appeal.

7. The Respondent also referred to matters in the Applicant’s affidavit about his financial circumstances, the fact that he was not legally aided in the proceedings and his need for an interpreter to assist him in dealing with legal concepts.

Submissions

1. Mr Maurice of Counsel, who appeared for the Applicant, helpfully tendered a document headed Documents relied upon by the Applicant Mother. Attached to that document was a minute of orders proposed by the Applicant.

2. In his submission, Mr Maurice relied on the decision of Fogarty J in Kelly & Kelly[2] and the Full Court decision of K & B[3]. He also submitted certain documents that had been annexed to the Applicant’s earlier affidavit material. He also referred the Court to the decision of the Full Court of the Family Court in Aldridge & Keaton (Stay Appeal)[4],as did Ms Oakley of Counsel, who appeared for the Respondent.

   [2] (1980) 6 Fam LR 741; (1981) FLC 91-007

   [3] [2006] FamCA 848; (2008) 37 Fam LR 1; (2006) FLC 93-288

   [4] [2009] FamCAFC 106

3. Mr Maurice submitted that the strongest ground in support of his client’s application is that if a stay were not to be granted it would render the Appeal nugatory. The older of the two children was in a state of crisis last year. He also said that certain things were submitted by Counsel who appeared for the Respondent on the last occasion (not Ms Oakley) that were not in accordance with the evidence.

4. Mr Maurice referred to the decision in K & B, where the Full Court (Warnick, May and Boland JJ) had held that in considering an application for a stay there is no slavish regard to be had to the status quo.

5. It was submitted, on the subject of delay by the parties, that the decision had been handed down on 19 August and the Applicant did not lodge her Appeal until 3 September. The Respondent had sought the return of the children on Day 13 after the decision, noting that the original orders provided that the Applicant should return the children to the care of the Respondent within 14 days.

6. At the time of hearing, a week had passed since the Court’s deadline had expired. It is not unreasonable to assume that the Applicant had to instruct her solicitor to obtain a copy of the judgment and analyse it. It was relevant that, as the children were at school in Sydney, the Court should note that the school term in New South Wales did not end until the Friday after the hearing and the children should not be taken out of school before the end of term.

7. It was submitted that the Respondent’s evidence about his inability with English did not support his claim. He said that he was without means but he was not on legal aid. The Court had been left with the overall impression that the Respondent was a man without means. There was no evidence about the Respondent’s means and no evidence of the Respondent’s occupation.

8. Mr Maurice took the Court through the bundle of documents that he had tendered, mainly being reports about the behavioural problems of the parties elder son whilst at school and the efforts that had been made to deal with the issue. It was submitted that the material showed that the father had not been dealing with the child’s behavioural and psychological difficulties, whereas the mother, by comparison, had been making efforts to have the child treated.

9. Ms Oakley of Counsel, for the Respondent, submitted that the best interests of the children were a significant consideration. The order made by the Court had not been complied with as the Applicant was required to do by 2 September. The mother had unilaterally retained the children at the end of a holiday period and the mother had not provided one hour of face to face time with the father.

10. Ms Oakley submitted that, on an assessment of the strength of the Applicant mother’s Appeal, the Applicant is asking the Full Court to vary parenting orders. The Full Court is being asked to re-exercise a discretion.

11. The overwhelming fact, Ms Oakley submitted, was that the children had been in their father’s care since 2010. The mother’s case is that the father did not adequately address the children’s behavioural difficulties when the children were in his care.

12. The best interests of the children are a significant consideration.  Further, there is no evidence as to when the Appeal can be heard.

13. Ms Oakley submitted that the Applicant Mother proposes that the children should spend two nights a month with their father in Sydney. She does not acknowledge that the children had been removed from their father’s care and had not seen him since.

14. It was further submitted that the Court should not be satisfied that a stay is appropriate. Whilst Ms Oakley conceded that the strongest part of the Applicant’s case was that a failure to grant a stay would render her appeal nugatory, on a close examination, even if a stay were not to be granted the Applicant would still be able to advance her appeal and nothing would render her appeal nugatory.

Applications for a Stay pending an Appeal

1. Kelly & Kelly[5] was a decision of Fogarty J in the Family Court of Australia where the husband sought a stay of certain property orders pending an appeal to the Full Court. His Honour considered two earlier decisions of the Supreme Court of Victoria, Klinker Knitting Mills Pty Ltd v Union Fire Insurance and General Insurance Co Ltd[6] and Scarborough v Lews Junction Stores Pty Ltd[7] and went on to hold:

   The latter case I think demonstrates what is relatively obvious, namely, that a stay is not granted as of course and that appropriate (or if one likes the term “special”) circumstances must be shown. In that particular case what was argued there was that there was a real risk that if the appeal was successful it would be abortive if no stay was granted and the judgment has to be read in that light, that is, the statement of his Honour in relation to that was not intended to be an exhaustive statement of the application of the rule but a particular instance of its application in the particular case….Clearly there must be circumstances shown which would justify the exercise of that discretion. It is I think unhelpful to attempt to circumscribe the exercise of that discretion by particular phrases or by reference to particular categories. Each case must be looked at in the light of its own circumstances against the background of that general approach, and a decision made in each case as to whether a stay is proper…[8]

   [5] (1980) 6 Fam LR 741; (1981) FLC 91-007

   [6] [1937] VLR 142

   [7] [1963] VLR 129

   [8] (1980) 6 Fam LR 741 at 743-744; (1981) FLC 91-007 at 76,104-76,105

2. K & B[9] was a decision on appeal to the Full Court of the Family Court against the refusal of a stay of parenting orders. The Full Court held at [32] that:

   The granting or refusal of a stay involves an exercise of discretion by a trial judge. While such discretion must be exercised judicially, in cases involving children, we accept that from time to time circumstances in existence at the date of the orders, or which occur from the date of orders until the hearing of a stay application, may be very relevant matters to be considered in the exercise of discretion in determining whether or not to grant a stay. The interests of children would not be promoted by an inflexible requirement or presumption in every case to maintain the status quo prior to the making of orders the subject of the stay application, and to ignore unsatisfactory arrangements at the time of the orders, or significant events which have occurred after the making of those orders.[10]

   [9] [2006] FamCA 848; (2008) 37 Fam LR 1; (2006) FLC 93-288

   [10] [2006] FamCA 848 at [32]; (2008) 37 Fam LR 1 at 10[32]; (2006) FLC 93-288 at 80,942 [32] per Warnick, May and Boland JJ

3. The comparatively recent Full Court decision of Aldridge & Keaton (Stay Appeal)[11] provides, with respect, a useful guide to trial judges in determining an application for a stay of orders pending an appeal. At paragraph [17] of the decision, the Full Court remarked:

   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…[12]

   [11] [2009] FamCAFC 106

   [12] [2009] FamCAFC 106 per Bryant CJ, Boland and Crisford JJ

4. Their Honours went on at [18] to set out a list of principles relevant to determining an application for a stay, which are so well known that they need not be quoted in full. What I propose to do is to consider those matters that are relevant to the application before the Court.

Conclusions

1. The onus is on the Applicant to establish a proper basis for the stay. It is not necessary to demonstrate any special or exceptional circumstances. The mere filing of an appeal is insufficient to grant a stay.

2. The Respondent is entitled to the benefit of the judgment handed down on 19^th August. He is entitled to presume that it is correct.

1. There appears to be no doubt about the bona fides of the Applicant. She wishes to appeal against the decision and is of the view that she has an arguable case. I believe that she has an arguable case, but that is not to say that she necessarily has a winnable case.

2. There is no evidence about the length of time before the Appeal can be heard. If a stay is granted, the children would remain in the care of their mother. If a stay is not granted, the children will return to live with their father, as was the case until early this year.

3. The parties are at odds about whether the refusal to grant a stay would render the Applicant’s appeal nugatory. As the Full Court said at [18]:

   …this will be a substantial factor in determining whether it will be appropriate to grant a stay.

4. Ms Oakley of Counsel most eloquently submitted that, in this case, the granting of a stay would not render the Applicant’s Appeal nugatory. In my view, she is correct in that submission. If the stay is not granted, the children will return to live with their father. That will not stop the mother prosecuting her Appeal.

5. It is important to consider the circumstances of this matter. The children had been living with their father, either by default or acquiescence, since the middle of 2010. The parties had arranged for the children to spend time with their mother in January of this year and, on 4^th February, the mother unilaterally refused to return the children to him. She had formed the view that the children, especially the older boy, had significant behavioural and psychological problems which were not being adequately addressed by the Father. So, she refused to hand the children back and they had not seen their father from that time until the date of the hearing in August, some six months later.

6. I am not of the view that the evidence brought by the Mother was of such strength that a finding could be made that the children should not return to their father’s care. Taking the Mother’s case at its highest, the Father was not doing a particularly good job of addressing the children’s needs and she, over a six month period was doing a better job. The circumstances were not such that a finding could be made that there was an unacceptable risk of physical or psychological harm to the children from being subjected to, or exposed to, abuse, neglect or family violence.

7. It may well be that a Court hearing the parenting application will form the view that the best interests of the children will be better served by their living with their mother rather than with their father. That is something that the mother can argue on appeal. It would be open to the Full Court to decide that the Mother’s appeal should be upheld and the children should return to live with her in Sydney, and transfer the proceedings back to this Registry. It is unlikely, with respect, that the Full Court would decide that the Mother’s appeal, if otherwise deemed meritorious, should fail merely because the children have gone back to Brisbane to live.

8. The Court should consider the desirability of limiting the frequency of any change in the children’s living arrangements. Indeed, that is so, but it is hardly open to the Mother to argue that the children’s living arrangements should not be changed after she has already unilaterally changed those arrangements in February of this year. The children had been living with their father from 2010 to 2014, nearly four years, until the mother made the decision to change those arrangements.

9. The best interests of the children are a significant consideration. The children had not spent any time with their father from February to August as a result of the mother’s actions. Until February this year, he had been their primary caregiver.

10. It may be that in due course a Court will decide that it is in the children’s best interests for them to reside with their mother rather than their father. However, such a decision should be made by a Court in the proper way, rather than by one party taking the law into her own hands.

11. The application for a stay will be refused.

12. However, as the children have been attending school in Sydney for three school terms. Order (9) made on 19 August this year provided that the mother would spend time with the children for half of each of the Queensland school holidays. It is common knowledge that at this time the Queensland school holidays coincide with the holidays in New South Wales, which has not always been the case. It would therefore be appropriate and less disruptive to the children to remain with their mother until Saturday 27^th September, which is the middle Saturday of the school holidays. The children can then return to their father and he can make the appropriate arrangements to re-enrol them in their old schools.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date: 19 September 2014