JEFFS & MARSHALL (No.3)
[2019] FCCA 58
•10 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JEFFS & MARSHALL (No.3) | [2019] FCCA 58 |
| Catchwords: FAMILY LAW – Parenting – application for stay of interim orders pending appeal – stay granted on terms. |
| Legislation: Family Law Act 1975, s.91B |
| Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 Pettit & Anor & Fairs & Anor(No.2) [2017] FCCA 98 |
| Applicant: | MS JEFFS |
| Respondent: | MR MARSHALL |
| File Number: | MLC 7616 of 2016 |
| Judgment of: | Judge Harland |
| Hearing date: | 10 January 2019 |
| Date of Last Submission: | 10 January 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 10 January 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Teicher |
| Solicitors for the Applicant: | Cathleen Corridon |
| Counsel for the Respondent: | Ms Healey |
| Solicitors for the Respondent: Counsel for the Independent Children’s Lawyer: Solicitors for the Independent Children’s Lawyer: | CBD Family Lawyers Ms Devine Altavilla Family Law |
ORDERS
The Independent Children’s Lawyer be granted leave to issue a subpoena for Ms A, Town K CSC at short notice.
The Independent Children’s Lawyer be granted leave for the subpoena to be served on Ms A by email.
The Independent Children’s Lawyer to provide a copy of the s.91B response from the New South Wales Family and Community Services department to Ms B.
The Respondent’s solicitor forward to Dr C a copy of the Family Report of Ms B filed 25 September 2018, a copy of the Contact Reports of Contact Centre filed 30 October 2018 and the Reasons for Judgment of Her Honour Judge Harland delivered 13 December 2018.
The Orders 1 to 4 of the Orders made 13 December 2018 be stayed pending further order.
The parties and children attend upon Dr C at Suburb D on 11 January 2019 and the parties follow the directions and recommendations of Dr C for the purposes of therapeutic support and assistance with transitioning the children from the mother’s care to the father.
If the transition referred to in Order 6 is successful, the children spend time with the father, supervised by the paternal aunt, from the time at Dr C’s office until 7:00pm that day with the children to be returned to the mother or her nominee at Dr C’s office or the nearest McDonalds as agreed between the parties or failing agreement, as nominated by the Independent Children’s Lawyer.
The application in a case filed 28 December 2018 be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Jeffs & Marshall (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 7616 of 2016
| MS JEFFS |
Applicant
And
| MR MARSHALL |
Respondent
REASONS FOR JUDGMENT
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is an application by the mother seeking a stay of the interim orders that I made on 13 December 2018 pending the determination of her appeal of those orders. The principles which apply to the stay of proceedings in parenting matters are well established and the leading case is the Full Court decision of Aldridge & Keaton (Stay Appeal) (2009) FamCAFC 106. I refer to [17] and [18] of that decision:
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.
This is a complex and difficult parenting matter. I refer to my interim reasons delivered on 13 December 2018 where I stated that the length of the trial is one indication of the complexity, but what is particularly telling is the fact that the trial has thus far been conducted over seven substantive days of hearing in circumstances where the mother’s application was struck out and, whilst the mother has been represented throughout, she is not giving evidence and nor are her witnesses.
Indeed, I can say that I have never had a trial proceed in this manner where one party’s participation is limited, which is due to circumstances of the mother’s creation. Both the interim hearing itself and the stay hearing have been run on the basis of there being very little documents. In the case of the father’s oral application for interim parenting orders, that needs to be seen in the context of an application being made after seven days of trial in circumstances where due to the time of year and unavailability of Counsel and the Court at various times the hearing was to be adjourned from 27 November 2018, being the last days of the trial, and 17 January 2019 when the trial is due to resume.
I am not critical of the father making that oral application in those circumstances and I want to make that clear. I should indicate that, as is indicated in the interim reasons, the application was adjourned in order to accord the mother procedural fairness. With respect to the documents in support of the application for a stay, they are scant, indeed. The application in a case is supported by a six paragraph affidavit by the mother’s solicitor. There is no affidavit by the mother and the mother is not at Court.
Whilst the timing of this matter has been complicated by the time of year, there has been no further affidavit filed since that application in a case. It was filed on 28 December 2018. The matter has been made more difficult today by the fact that the mother, in particular, did not have an alternative proposal for orders to be made in the event the Court was satisfied to make a stay but only on terms, and that is one of the material matters for a Court to consider as flagged in Aldridge & Keaton.
I will turn to the principles that are relevant for the Court to consider on a stay application. I will turn to each of the matters identified by the Full Court at [18] of their decision.
Firstly, the applicant for the stay bears the onus of establishing that there is a proper basis for the stay. It is not necessary for the applicant to demonstrate any special or exceptional circumstance. The mother has filed the appeal on 20 December 2018 within a short period of time of the interim reasons being delivered and has filed the application in a case for the stay a short time thereafter on 28 December 2018, particularly bearing in mind Christmas was in between and, further, has brought a review of the return date of the application so that the stay could be heard before the operation of the interim orders which were due to commence tomorrow. In those circumstances, I am satisfied that she has established a proper basis for seeking a stay.
Secondly, that the person who has obtained judgment is entitled to the benefit of that judgment. In this case, that is the father and it is a highly relevant matter that weighs heavily against granting the stay.
Thirdly, is that a person who obtained the judgment is entitled to presume that the judgment is correct and this flows from the second point.
The fourth point is the bona fides of the applicant. The father’s argument opposing the stay in part challenges the bona fides of the mother. Whilst not stated explicitly, what is clear is that from the father’s position that this is another delaying tactic and another obstruction to there being a re-establishment of his relationship with the children, which has very much been one of themes throughout the trial. Particularly when seen in the context of the history of the proceedings and the numerous interim orders that the mother has not complied with whereas in contrast the father has not only complied with orders, but has gone to some considerable expense and has been proactive in addressing concerns and anticipated concerns with respect to his spending with the children, including, but not limited to, engaging Mr D for counselling assistance and with respect to the interim orders engaging Dr C to assist with the transition of the children from the mother’s care to his care for the purpose of the interim orders. I also observe that the father has attended each court event which involves some hours travel for him. I observed the mother is not in Court today and has not been in Court on several occasions.
Whilst there is a further distance for the mother at this stage, that is as a result of the mother’s ongoing breach of orders. In that sense it is a circumstance of her own making. The father’s frustration and cynicism about the mother’s bona fides is understandable. Given the protracted nature of the proceedings, the length of time since he has been able to spend time with his children, many in his position would have given up before now.
Turning to the sixth point, the Court may grant a stay on terms that are fair to all parties and this may involve weighing up the balance of convenience and competing rights of the parties. This is the factor where it is a real omission of the mother to have not turned her mind to and made a proposal in the alternative to her primary application that the orders be stayed. Indeed, that is something that the Court would often see in the application in a case itself.
Instead, it has been necessary to stand the matter down and clarify the mother’s position. Of course, what that means is that the Independent Children’s Lawyer and the father, and Counsel for both, also have to deal with proposals on the run. Given the considerable public resources that have been put into this case, both in Court time, but also the Legal Aid resources funding the mother and funding the Independent Children’s Lawyer, the Court is entitled to expect better. I note that Counsel for the mother is the Counsel who has appeared throughout the trial and it is her instructor who has prepared the documents.
After clarifying with the mother’s Counsel, the mother’s primary position is that the order be stayed and no other order be made. She has handed up two ultimate proposals in the event that that order is not made. Her first proposal really involved Dr C not only facilitating the transition of the children from the mother’s care to the father’s care, but also, in effect, supervising time on three other occasions.
Her alternate proposal would have Dr C facilitating the time on the first occasion and there being time supervised by the paternal aunt during the day rather than overnights and with changeovers to occur inside the Police Station at Town L. Although when Counsel for the Independent Children’s Lawyer raised issues with respect to that, it was proposed that the handover could be in some other public place.
The father’s position is very clear. He seeks dismissal of the stay and seeks to have the benefit of the interim orders that have been made. The Independent Children’s Lawyer also opposes the stay. One reason the matter was stood down this morning after hearing argument after some exchanges, bench and counsel, was to clarify the role that Dr C would be able to undertake. There is no documentation from Dr C and I stress that I am not critical of that.
I have alluded to the circumstances of the application for and the interim orders previously and note that, indeed, it was the father’s position at the interim hearing that Dr C was available to give evidence by telephone if required. That simply was not practicable given that the interim hearing was conducted in the end of a duty list in circumstances of the pressures of various other matters in Court.
What is clear from looking at the material and looking at the appeal was the issue of what the exact nature of his involvement would be, which was clearly more than simply, and was put at the time, effecting a changeover. Of course, in the restricted circumstances, it is also not and it cannot be a fully therapeutic intervention though it has a therapeutic element to it.
Counsel for all the parties have spoken to Dr C today while the matter was stood down and Counsel for the Independent Children’s Lawyer indicated, and the other Counsel agree, that Dr C explained that he can facilitate the children spending that initial time with the father and that very much how that day would evolve is fluid because it very much depends on how the children react.
Dr C indicated that the needs of each child may be different in terms of what therapeutic assistance they need from him. His intention is to see both parents and the children. He indicated that he has set aside two hours tomorrow, but is able to extend that, and very much his role is managing the transition between the father and the mother for the children, but also managing that initial time.
It is simply not possible for either Dr C or anyone else to be more specific than that because one of the very real challenges in this case has been the failed attempts at supervised time previously. As well as the fact that there has not been therapeutic counselling for the children undertaken previously, and the real length of time that the children have had any meaningful engagement with their father which has been limited to the limited circumstances of the observation that the family report and with respect to [X] a supervised visit.
With respect to the mother’s alternate proposal in the event she is not successful in seeking a stay that there be daytime contact only, supervised by the paternal aunt, is opposed by the father and the Independent Children’s Lawyer on the basis that as submitted by the father’s Counsel that there has been no change of circumstance or any new risk issue raised with respect to the father. The Court had previously determined it was in the children’s best interests to order that there be a period of supervised time, including overnights with the father and children prior to the trial resuming next week.
Counsel for the Independent Children's Lawyer pointed out that there was nothing in the questioning by the mother’s Counsel of the father during the trial that he would pose an unacceptable risk to the children at night time as opposed to daytime, and that that also was not put to other witnesses.
Counsel for the Independent Children’s Lawyer further submitted that whilst it is certainly true that the children did not spend overnight time with their father, and if there is any doubt about them having spent supervised time with him previously, certainly they have not spent supervised time with him since the Children’s Court proceedings were on foot prior to these proceedings.
What has to be weighed up is trauma to the children and that changeover between the parents who do not speak to each other and have not spoken since 2014, and changeovers at a police station twice a day in circumstances where there has been extensive police involvement with the parents, but with the mother and her previous partner, Mr E, and also her current partner Mr F, could well be even more traumatic to the children and would be more disruptive for the children than the single block of time.
In reply to this the mother’s Counsel indicated that the issue was the lack of relationship between the father and the children and that that is why daytime and not overnights would be beneficial if the Court is to order time pending the resumption of trial.
The seventh point is weighing the risk that an appeal may be rendered nugatory if a stay is not granted. The Full Court observed that this is a substantial factor in determining whether or not it is appropriate to grant a stay. This factor is the weightiest factor in this matter as it is not disputed that not granting the stay will render the appeal nugatory as the appeal is with respect to a block of time that is due to commence tomorrow.
The eighth point is the consideration on a preliminary basis of the strength of the proposed appeal and whether or not the appellant has an arguable case. There are four grounds in the appeal. Counsel for the Independent Children's Lawyer made the technical point that the appeal as currently drafted is defective as it does not seek leave to appeal from an interim order. That is certainly correct but it is also a defect that can be corrected before any appeal hearing.
The first ground in the appeal is that the Court erred in fact and law in undertaking an interim hearing when the final hearing was part heard. That ground is fundamentally flawed. It is not uncommon for the Court to be asked to make interim orders at various stages of proceedings, and it is not unusual for the Court to make interim orders during a part-heard hearing, although it is far more common for interim orders to be made by consent.
More importantly, in this case the mother’s Counsel at the interim hearing did not argue that the interim hearing should not be conducted. The mother’s Counsel indeed put forth a proposal by the mother for there to be supervised time. The difference was that the proposal was that that time be supervised at a professional contact centre in Town K, opposed to the father’s proposal that there be time supervised by his sister in Victoria. It is hard to see how the first ground could succeed in those circumstances, it not having been an argument raised before the trial court. Indeed, the position contrary to what was put at that time.
The second ground is that the court made an error of fact and took into account irrelevant considerations in accepting submissions with respect to Dr C in the absence of evidence from Dr C concerning the extent of his proposed involvement with the children. I have discussed the issue of Dr C earlier in these reasons and it was addressed in my interim reasons. In my view, that ground is the ground that has the strongest merit with respect to the appeal.
The third ground is that the Court made an error of fact and took into account irrelevant considerations and disregarding the evidence of the family consultant and Dr G during the part-heard trial including evidence regarding the necessity for therapeutic counselling for the children. It is simply not correct to state that the Court disregarded the evidence of the family consultant and Dr G when both were addressed in the interim reasons. I observe, as I observed in those reasons, that it simply was not possible due to the time restrictions to refer to evidence at any length that had occurred over some seven days.
I also note is that whilst the hearing is part heard it is also at a stage where certainly where interim application was heard, the only witness that was anticipated to be called was the family consultant. She had previously given evidence in cross‑examination for a day and a half and, as indicated in my interim reasons, it had always been anticipated that she would be recalled in order to put to her the evidence that has fallen during the trial to see whether or not her recommendations would change as a result.
I also indicated in the interim reasons that the Court had heard all of the evidence with respect to the father’s mental health and the allegations of sexual abuse by the father. The difficulty with the mother’s third ground with respect to therapeutic counselling is that it conveniently ignores the orders that had been made previously for such counselling to occur. In fact, previous orders were made for there to be reunification therapy through CatholiCare.
The father participated in all of the sessions that were offered to him. The mother did not participate in any, and consequently the children also did not participate. The father’s proposal for the involvement of Dr C in the transition of care was very much directed at that very concern that there be some sort of therapeutic element and professional assistance.
The father’s Counsel also correctly pointed out during the course of argument this morning that the New South Wales Department of Family and Community Services response dated 5 January 2019 to the order I made on 7 August 2018 pursuant to section 91B of the Family Law Act 1975 refers to the mother telling the worker who attended the mother’s home for the purposes of carrying out a risk assessment that she had made counselling arrangements for the children in December 2018 to provide them with assistance for counselling to address them seeing their father, but that that did not go ahead because of transport difficulties.
The fourth appeal ground is that the Court did not take into account the material consideration that the family consultant had not completed her evidence. I have addressed this previously and as indicated that was clearly flagged in the interim reasons.
The ninth point that the Full Court lists is the desirability of limiting the frequency of any change in a child’s living arrangements. This is a relevant consideration in this case in that the interim orders do provide for a significant change for the children in that they would be spending a block period with their father supervised by their aunt in context of only having spent a very limited time that I have referred to earlier in these reasons. Certainly, that was something that the Court was mindful of at the time of making the interim orders and was a subject that was addressed during the course of argument at the interim hearing, as one of the concerns raised was that the children also do not know the aunt. That was an issue that was addressed in those interim reasons.
The tenth point is the period of time in which the appeal can be heard, and whether there are existing satisfactory arrangements that could be made supporting the granting of a stay for a short period. It is unknown as to when the appeal could be heard and given the time of year inquiries have not been able to be made but, presumably, such an appeal would not take place before the trial resumes next week.
The final point is that the best interests of the children are a significant consideration. Of course, it is the children’s best interests that have weighed heavily on this court throughout the proceedings, both with respect to the various interim applications and interim orders made prior to the trial, and during the trial. Indeed, it is a case where the Court is faced with stark choices and one of the messages in the interim reasons was exactly that. One of the real issues in the case is the mother’s willingness to facilitate the father’s relationship with the children and her willingness and ability to comply with court orders.
Particularly in circumstances where the mother’s case is to seek permission to remain in New South Wales at a significant distance from the father and his family. There to date has been no submission put on the mother’s behalf that the mother would return to Victoria with the children if the Court was minded to be determine that the children needed to be in a location where both parents are close. One of the issues that remains a real question mark in this case is the issue of risk with respect to the mother. One way of ameliorating risk is having the father involved significantly in the children’s care. Of course, if the parents were living in a closer location there are more variable options available.
That is not something in the course of the trial to date that has been explored but is one of the options that the Court could be faced with. Otherwise, the options could be quite stark as have been indicated by the Independent Children's Lawyer from the outset of the trial with the three proposed sets of orders.
When considering these issues and in the context of the current application, what is of relevance and what was not available to the Court and nor was there any indication that it may become available to the Court is exhibit B. Indeed, one of the complicating and aggravating factors in this case has been the difficulty in securing the New South Wales Family and Community Services department’s cooperation and engagement in this matter which will be something that will no doubt be discussed in the primary reasons.
In keeping with the nature of the case to date, the report from Family and Community Services raises many more questions. The Independent Children's Lawyer seeks leave to issue a subpoena at short notice for the author of the report who conducted the two home visits, Ms A, to be available to give evidence at the resumption of the hearing. Certainly, given some inconsistencies in the report and in particular the outcome of the risk assessment which is referred to in the covering letter as being that the outcome is moderate for abuse and high for neglect. It is certainly difficult to see how the positive observations and the conclusions fit together. This is why it is necessary for Ms A to give evidence to explain this.
Whilst the mother’s Counsel emphasises the positive observations in the report and the fact that Ms A refers to the home being well-kept, the children being happy and settled, the children doing well at school and so on, the father’s Counsel has indicated that there are real questions that need to be put challenging the accuracy of this, including whether or not the mother had prior warning of the visits, whether or not the worker has considered the previous neglect issues including the youngest child going missing in February, and other matters. What the report does not indicate that there is an immediate risk to the children currently.
Reflecting on part of the evidence of Ms B, family consultant, at trial was one of her real concerns was the lack of any assessment by the Department. I have also made orders today for her to receive the report prior to her being recalled as that addresses one issue. Having reviewed my notes over the course of today, one of the issues that Ms B raised in terms of recommending supervised time for the father, was not just based on concerns about his mental health or violence but based on the facts that [Y] and [X] do not know the father, and particularly [X], and that her view was that they should get to know him in a safe setting, given all the background influences they have had and giving them an opportunity to build a relationship with their father in that environment.
That is very much the reasoning behind there needing to be supervision at this stage is because of providing that factor with respect to the children and the children being traumatised, not because the father is an unacceptable risk, but because of the experiences the children have had and the fact that they have been deprived of the opportunity to resume the relationship with their father. One of the very many concerns that Ms B identified is the fact that these children have been through much upheaval in their short lives. They have had upheaval both in terms of the early years of their lives where the relationship between the parents was characterised by drug use and violence and mental health issues. They have been removed from their mother and placed in foster care and placed with other relatives.
There is the issue of the mother’s relationship with Mr F and also the number of moves that have occurred for the children and the fact that [X] has attended eight schools, four being in New South Wales, over the course of a year. One of the concerns that Ms B expressed was particularly with respect to [Y], who impressed her as not being a confident child and that the outlook for these children is not good. That is of real concern, no matter what the outcome of the trial is, given their experiences to date. One of the real dilemmas for the Court will be considering what is the least worst outcome for these children because there are significant challenges for these children regardless of what orders the Court makes.
I refer briefly to the comments of Her Honour Judge Bender in a decision of Pettit & Anor & Fairs & Anor(No.2) [2017] FCCA 98 where she was asked to order a stay with respect to final parenting orders which she had made. After referring to the authorities, including Aldridge & Keaton, she made the observation that:
…it is somewhat paradoxical to require the trial judge who has already made a decision that in the opinion of that judge is in the best interests of the children to revisit that in the context of an application for a stay pending leave to appeal -
She went on to comment that:
…perhaps the difference in that assessment of the best interests at trial and the best interests of children in a stay application relates to the need to consider the need to limit the frequency of changes in the children’s living arrangements -
When weighing up the various factors, based on the current appeal document, the appeal seems weak though not unarguable, but that what is of real substance in this case is that if the stay is not granted, then the appeal is rendered nugatory and that is an irreversible step and the ability of litigants to lodge and argue appeals is part of the broader administration of and access to justice. In this case, it would not serve the children’s best interests to simply grant the stay and make no other order. There is an opportunity to give these children and their parents some real assistance with the involvement of Dr C.
I propose to grant the stay sought by the mother but I will order that the parents and children attend upon Dr C tomorrow and that they follow the directions of Dr C. I will further order that if Dr C is able to facilitate the transition, and by that I do not mean simply that he is able to facilitate the transition in the practical sense but rather that he is able to facilitate the children coping with that transition, that the children spend time with the father supervised by the paternal aunt from the time at Dr C’s office until 7:00pm that day. The children are to be returned to the mother or her nominee at Dr C’s office or at the nearest McDonald’s as agreed to by the parties or failing agreement as nominated by the Independent Children’s Lawyer.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 23 January 2019
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