Jasapas and Johns (No 2)

[2020] FamCA 371

FAMILY COURT OF AUSTRALIA

JASAPAS & JOHNS (NO. 2) [2020] FamCA 371

FAMILY LAW – PRACTICE AND PROCEDURE – Stay pending appeal – Where the mother seeks a stay pending appeal of final parenting orders – Where final parenting orders were made in February 2020 which provided for the children to immediately move to live with their father and for there to be a six month moratorium on the children’s time with the mother – Where the mother apparently does not dispute, on appeal, the finding of the trial judge that the father does not pose an unacceptable risk of physical and sexual abuse to the children in his unsupervised care – Where a failure to grant a stay would not render the appeal nugatory – Where it is desirable to limit the frequency of change in the children’s living arrangements – Where it is in the best interests of the children to stay in their father’s full-time care pending the determination of the mother’s appeal against the final parenting orders – Where the application is dismissed.

Family Law Act 1975 (Cth)

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
K & B (2006) FLC 93-288

APPLICANT: Ms Jasapas

RESPONDENT: Mr Johns

INDEPENDENT CHILDREN’S LAWYER: Barbara Fox

FILE NUMBER: BRC 5081 of 2014

DATE DELIVERED: 18 May 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 24 April 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McGregor

SOLICITOR FOR THE APPLICANT: Mitchell Lawyers

THE RESPONDENT: Self-represented

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Fox
Barbara Fox Solicitor

Orders

1. The applicant mother’s Application in a Case filed 1 April 2020 for a stay of the parenting Orders made by this Court on 24 February 2020, is dismissed.   

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 Jasapas & Johns 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 BRISBANE

FILE NUMBER: BRC 5081 of 2014

Ms Jasapas

Applicant

And

Mr Johns

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. In July last year, I presided over a five day trial in this parenting dispute. I delivered my Judgment in February this year, making Orders that the two children move immediately from the mother’s care to the father’s care and that there be a complete moratorium on contact and communication between the children and the mother for six months before the commencement of supervised visits. In accordance with those Orders, the children moved to the father’s care and have been living with him since. Soon after the children went into the father’s care, using the sole parental responsibility my Orders had also given him, he moved the children from the school they had been attending and put them into a school closer to his home.

2. The mother has filed an appeal against my Orders and she seeks a stay of the Orders and placement of the children back into her care pending the hearing and determination of her appeal. She also seeks that they be returned to the school they had been previously attending.

3. I heard the stay application on Friday, 24 April 2020 by the Microsoft Teams internet video meeting platform. The mother was represented by the same solicitors and barrister who represented her at the trial. The father was once again unrepresented and the Independent Children’s Lawyer appeared without counsel.

4. The determination of parenting orders is a discretionary process. So, too, is the determination of an application for a stay of parenting orders pending the determination of an appeal against those orders.

5. 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 well known (see Commissioner of Taxation v Myer Emporium Ltd [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332).

6. In Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106, at [18], the Full Court of the Family Court referred to those authorities and said that they:

   … stress the discretionary nature of the application which should be determined on its merits.

7. The Full Court also set out what it said are the principles relevant to the discretionary exercise. They included 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.

8. In that same judgment, the Full Court also referred at [36] to another judgment of the Full Court (K & B (2006) FLC 93-288 (“K & B”)) in which the Full Court had dismissed a stay appeal where it found that the arrangements which existed for the particular child at the time of trial were not satisfactory, and therefore the maintenance of the status quo pending the determination of the substantive appeal was not in the child’s best interests.  At 80,942, [32] of K & B, the Full Court explained why in a parenting appeal, the granting of a stay to maintain a “status quo” is not always appropriate, or the best interests of a child may dictate refusal of a stay as appropriate.  Their Honours said in that paragraph:

   The granting or refusal of a stay involves an exercise of discretion by a trial Judge. Whilst 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.

Some Relevant Background

1. The parties’ relationship of cohabitation had lasted just over 11 years. It had produced two children – a boy, who is now 9 years of age, and a girl, who is now 6 years of age. Final separation occurred in March 2014. Dispute broke out between the parents immediately upon separation as to the co-parenting relationship. The children remained in the mother’s care and she restricted their time with the father. The father commenced court proceedings and the matter proceeded to trial in this Court before Justice Tree in mid-2016.

2. In his Judgment, Tree J observed of the mother that she believes the father had sexually and physically abused at least the male child and was grooming him for further sexual abuse. His Honour went on to further observe that the mother believes that other members of the father’s family, including his own mother, have also abused one or both of the children and are prepared to condone the father sexually abusing the children whilst they are in his care. His Honour observed at [2] that the mother “is convinced that the father has a sexual interest in underage persons”.

3. His Honour found that the father, who had appeared at the trial without legal representation, did not present an unacceptable risk to the children as asserted by the mother and made final orders that the children commence spending unsupervised time with the father such that after a short gradual re-introductory period they would be spending half of each of the school holidays with him in addition to being in his care from after school Thursday to before school Monday each alternate week and overnight on the Thursday each other week during school term.

4. Soon after Tree J’s judgment was delivered and the Orders made, the mother asserted that the children both began making very serious allegations of sexual abuse being perpetrated by their father against them whilst they were spending time with him in the home which he shared with his parents, and whilst his parents were also there. The mother stopped the children’s time with the father again. Proceedings began again in this Court. Supervised time only was reinstituted and the matter came before me for trial in July, 2019.

5. I determined that the father has not sexually or physically abused the children and that they do not face an unacceptable risk of such abuse in his unsupervised care. I further accepted the opinion of the single expert family report writer that leaving the children with the mother and making orders as Tree J did for the children to simply spend regular unsupervised time with the father would result in a continuation and probable worsening of the allegations that were being made and that the emotional harm that would be caused to the children by that “would far outweigh the impact of a change of their primary living arrangements”.

6. That is, in summary, why I made the Orders that I did.

The Mother’s Submissions

1. Counsel for the mother concentrated his submissions. He respectfully submitted that the mother’s appeal has good prospects of success, with a reversal of the living arrangements that my Orders put in place being a likely outcome. He submitted that the change in living arrangements my Orders effected would cause a profound and lasting impact on the wellbeing of the children and should therefore be reversed now by way of the immediate implementation of the stay sought by the mother.

The ICL’s Submissions

1. The ICL opposed the mother’s application for a stay. She told the Court that she had met and spoken with the children just after my Orders were made, explaining to them the effect of the Court’s Orders. She told the Court nothing that caused any concern that the decision to move the children to the father’s care was not in their best interests. She supported the father’s decision to move the children to a school closer to his home.

The Father’s Position

1. Unsurprisingly, the father opposed the mother’s application for a stay.

My Decision to Refuse the Stay

1. The Notice of Appeal filed by the mother on 17 March 2020 was in evidence before me. It contains eight separate grounds of appeal and, within two of those, a number of separate sub-grounds. Relevantly, in my judgment, none of those grounds include any challenge to my finding that the father did not sexually abuse his son or his daughter or to my finding that there is no unacceptable risk of him doing so when they are in his care. I understand the grounds being argued by the mother (outside the one in which she contends that I erred in making certain orders against the maternal grandparents) effectively contend that even with my findings that the father did not abuse his children and presents no unacceptable risk to them that I erred in not determining that the children should remain living principally in the mother’s care. I do accept that, at least, to be a challenge to my finding that to leave the children in the mother’s unsupervised care would present the children with an unacceptable risk of emotional harm.

2. I do not consider, in this particular matter, that I need to enter into a careful consideration of the prospective merits of the various grounds of appeal contended by the mother. I also acknowledge the point that counsel for the mother made in respect of the difficulty clearly confronting a first instance decision maker when considering the submission that an appeal against that decision maker’s judgment has merit. That difficulty is self-evident. Accordingly, I will, in the determination of this particular stay application, approach my task on the basis of prima facie acceptance of counsel’s submissions that the mother’s appeal has some merit. If that is correct and the mother succeeds in the appeal, she would likely get a retrial by a different Trial Judge, or the Full Court itself might re-exercise the discretion and potentially make an order that the children again live with the mother.

3. As such, as in so many appeals against first instance parenting orders, it cannot be said that a failure to grant a stay of those orders would render the appeal nugatory.

4. Of further relevance in my judgment, particularly in the light of my view that the mother does not, in her appeal, challenge my finding that the children do not face an unacceptable risk in the unsupervised care of the father, is the mother’s apparent inconsistent stance, since filing her Notice of Appeal on 17 March 2020, as to the time the children should spend with the father.

5. In her Notice of Appeal, the mother set out the orders she would want made if her appeal is successful. She sought an order that the children spend no time with the father. In her Application for the Stay, she set out the orders she asked the Court to make in staying the previous orders. Those orders included an order that the children only spend time with the father supervised at a children’s contact centre pending the determination of the appeal. On the day of the hearing of the stay application, an amended set of draft orders sought by the mother was provided to the Court. Those included an amended order sought whereby the children spend unsupervised time with the father from after school on Friday until 5:00 pm Sunday, each alternate weekend, pending determination of the appeal. This change of position at least appears consistent with the view I have that the mother’s appeal does not include a challenge to my finding that the children do not face an unacceptable risk of sexual or physical abuse in their father’s unsupervised care.

6. As I have already observed, the Full Court has pointed out that in determining applications to stay parenting orders pending appeal, the best interests of the children the subject of the proceedings are a significant consideration and, in considering this, it is clearly desirable to limit the frequency of change in the children’s living arrangements.

7. As counsel for the mother stressed, it was a very significant move to take these two children from their mother’s full-time care and place them in their father’s full-time care and severely restrict and limit their contact with the mother for the foreseeable future. If the mother succeeds in her appeal, and she might, there could very well be another significant move for the children. However, there is always the possibility that the mother will not succeed with her appeal. If I make the significant move the mother seeks now and return the children to her care and their former school, and her appeal happens to be unsuccessful, that would necessitate the very significant move back to the father’s full-time care and, very likely, back to the different school again. I do not consider the potential for so many significant moves to be in their best interests.

8. Satisfied as I am that the mother no longer appears to be contending that the children face an unacceptable risk of sexual abuse in the father’s unsupervised care, and satisfied as I am, in any event, that they do not, I consider the best interests of the children at this moment in time will be met by leaving them in their father’s full-time care and at the school they are currently attending pending the determination of the mother’s appeal against my February 2020 Orders.

9. As I observed during the hearing of this application, should the mother and her legal representatives be as confident of the prospects of success of her appeal as counsel respectfully indicated they were, an application to the Full Court for the mother’s appeal to be heard with expedition may be worth entertaining and may be met with more success than this stay application. Counsel for the mother embraced that idea enthusiastically and I record in these reasons that each of the father and the ICL indicated support for the idea of an expedited hearing of the appeal if that can be achieved.

10. I dismiss the mother’s application for a stay.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 18 May 2020.

Associate: 

Date:  18 May 2020