JELBART & GANZER (No.2)
[2018] FCCA 3137
•16 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JELBART & GANZER (No.2) | [2018] FCCA 3137 |
| Catchwords: FAMILY LAW – “Stay Application” in parenting matter – relevant principles – complete uncertainty of likely result of appeal which in substance will be the exercise of discretion following the consideration of the exercise of discretion – consideration of the disjuncture between Full Court authority of long-standing compared to new appeal ground of alleged failure to engage in active intellectual process” with issue but where later Full Court decision does not refer to earlier authority and relies upon a decision from migration jurisprudence – stay refused. |
| Legislation: Family Law Act 1975 (Cth) |
| Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 Anderson v Senior (Stay Appeal) (2013) 279 FLR 399; (2014) 50 Fam LR 21 Strahan & Strahan [2010] FamCAFC 83 Tobey v Rezek & Ors [2011] FamCAFC 86 UBS AG v Tyne [2018] HCA 45 |
| Applicant: | MR JELBART |
| Respondent: | MS GANZER |
| File Number: | CAC 144 of 2015 |
| Judgment of: | Judge Neville |
| Hearing date: | 21 September 2018 |
| Date of Last Submission: | 21 September 2018 |
| Delivered at: | Canberra |
| Delivered on: | 16 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Eldershaw |
| Solicitors for the Applicant: | Yeend & Associates |
| Solicitors for the Respondent: | Dobinson Davey Clifford Simpson |
| Solicitors for the Independent Children's Lawyer: | Legal Aid ACT |
ORDERS
The Mother’s Application in a Case, filed 5 July 2018, be dismissed.
Costs be reserved.
IT IS NOTED that publication of this judgment under the pseudonym Jelbart & Ganzer (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 144 of 2015
| MR JELBART |
Applicant
And
| MS GANZER |
Respondent
REASONS FOR JUDGMENT
Introduction
When this matter first began, in early February 2017, the primary (but not the only) issue was the amount of time the child, 4 year old [X], was to spend with her Father. The converse of the primary issue was (and remains) necessarily true, namely that this was not (and is not) a “no contact case.”
On 15th May 2017, interim parenting Orders were made by consent (in Chambers), which (summarily stated) provided for the parents to have equal shared parental responsibility in relation to [X], and for a regime of regular, if somewhat limited, time for [X] to spend with her Father. Those Orders also provided for the parties to obtain a Report from an external Expert (Ms W) and for the costs of that Report to be shared equally by the parties. That Report was formally released to the parties on 27th July 2017.
On 13th November 2017, the Father filed an Application in a Case, pursuant to which he sought an increase in the time that he spends with his daughter. Orders were made on 14th November 2017 that provided a timetable for the Mother to file a Response to the Father’s Application, and for the matter to be listed for directions/interim hearing on 23rd March 2018 at 2pm; those Orders also provided that the matter be allocated time of “no more than 1 hour.” Other directions were made at the same time for the filing of written submissions.
The enduring and primary issue in November 2017, as in February 2017, March 2018, June 2018, and in September 2018, remains, [X]’s time with her Father.
For reasons delivered orally on 1st June 2018, then later in writing, I explained (a) why the Court was not able physically to accommodate the interim hearing on 23rd March 2018, (noting again that the matter was formally listed for “directions/interim hearing”), (b) how the matter was dealt with by way of detailed and multiple written submissions, and (c) why the Court agreed with the extremely detailed assessment of the Expert in her Report that there should be a graduated increase in [X]’s time with her Father.
The Mother, who is a (occupation omitted), but who is clearly strongly supported (including presumably financially supported) by her parents (to whom a copy of the Family Report was agreed to be released), has appealed those interim Orders. She also now seeks a stay of those Orders. For the reasons that follow, that Application must be refused.
The Appeal & the Stay Application
The Mother, who is the Respondent in the substantive proceedings, as already noted, filed an Application in a Case on 5th July 2018, seeking a stay of the Interim Orders of 18th June 2018, pending the determination of the two appeals filed by the Mother’s solicitors on 29th June 2018. These appeals were filed prior to the settlement of written reasons in this matter on 24th July 2018. Why two separate Appeals, with two filing fees, rather than one Notice of Appeal segregated into relevant parts, is not explained. Given the significant resources consumed on this matter thus far, which must include very extensive legal fees, one might surmise that extra filing fees are of no particular moment. And by way of further lament, as opposed to objection, the extra resources of the Court are required to deal with the current Stay Application.
Judges in the Family Court in recent years have been reported quite prominently, and in my view very properly, lamenting the extreme costs associated with family law litigation. Examples are legion, in both Courts. I join in this constant concern.
My current lament simply follows comments made in the principal judgment about the prodigious consumption of the parties’ resources in the protracted litigation that engulfs them and from which, eventually at some time in the future, only the lawyers [respectfully] will emerge very profitably and unscathed, unlike the parties. And all this extra litigation and prohibitive cost because of dissatisfaction (by one party) with a discretionary judgment that was based upon an Expert Report (which the Mother says I relied upon too heavily) prepared by a hugely experienced family consultant, agreed upon by the parties. And some wonder why the family law system is so clogged if not litigiously dysfunctional. A good question but not to be answered here. None of this is to say that making Orders that are in [X]’s best interests is not important; plainly it is. It is simply to note the utterly, fruitlessly and prohibitively expensive route of litigation to resolve such an important question. Such is the fraught game of family law litigation regarding a discretionary judgment (and an interim one at that); the pursuit of a result that appeases one parent but not the other and using all legal means to achieve it.
On 1st June 2018, the Court delivered oral reasons in relation to the interim parenting dispute and issued the following Orders (emphasis in original):
1) Within 7 days of the date of these Orders, being by close of business on 8 June 2018, the parties are to provide the Court with an agreed Minute of Interim Consent Orders which (a) implement the recommendations of the Family Consultant, adjusted for the months that have lapsed since its release, and (b) provide for the procedural course this matter should take.
2) Absent agreement between the parties in relation to the Minute referred to at Order 1 of these Orders, the Orders Sought by the Father (which accord with the recommendations of the Family Report) will be made in Chambers, with adjustments for the 8 month time lapse between the date the Report was released and the date of the Orders.
3) The matter be adjourned to dates and times to be advised by the Court pending notification pursuant to Order 1 of these Orders.
As no Minute of Consent Orders was filed per Order 1 of the Orders of 1st June 2018, the following Orders issued on 18th June 2018, which were in accordance with the Orders sought by the Father, which followed the recommendations of the Family Consultant (emphasis in original):
1.All previous parenting Orders be discharged.
2.The parents have equal shared parental responsibility for the child, [X] (born: 2014) (“the child”).
3. The child live with the Mother.
4.The child spend time with the Father in the following regime, subject to (a) any agreement in writing between the parties, and (b) any school commitments that the child may have, provided they have been notified previously to the Father, at least three days beforehand:
a)Stage 1: For a period of three months, being from the date of these Orders to 18 September 2018:
i)Each Tuesday from 1:00pm to 4:00pm; and
ii)Each alternate weekend from 12:00pm – 6:00pm on Saturday and 12:00pm – 6:00pm on Sunday.
b)Stage 2: For a period of three months thereafter, being from 19 September 2018 – 19 December 2018:
i) Each Tuesday from 1:00pm to 4:00pm; and
ii)Each alternate weekend from 12:00pm Saturday to 12:00pm on Sunday.
c)Stage 3: after 19 December 2018 and until further Order:
i)Each Tuesday from 1:00pm to 4:00pm; and
ii)Each alternate weekend from 10:00am Saturday until 5:00pm on Sunday.
5.Once per month, the Father’s time with the child on Tuesdays, spent pursuant to the preceding Orders, shall take place on Wednesday from 1:00pm to 4:00pm and the Father shall notify the Mother at least 2 weeks in advance of this change.
6.From the commencement of the child’s schooling, the Father is to spend half of the school holidays with the child, with the dates and block time arrangements for such time to be agreed between the parties in writing.
7.The following is to occur in relation to changeover, absent any other agreement in writing between the parties:
a)For the purposes of changeover, the Mother shall transport [X] to her Father’s home and the Father will return the child to the Mother’s home at the conclusion of that time.
8.Each parent shall give authority to any medical practitioner, dentist, specialist or therapist who provides treatment or diagnosis to the child, to provide any and all information requested by the other parent in relation to the child.
9.Initially, the parents shall communicate any relevant information about the child pertaining to her health and wellbeing by e-mail, or with the “Talking Parents” ‘App’.
10.Each parent be restrained from denigrating the other parent or their family in the presence of the child, and will prevent any other person from doing so.
11.If possible all exchanges in relation to the child occur directly between the parents, without other people being involved.
12.The matter be adjourned for further directions to the first duty week in 2019, with dates and times to be advised by the Court upon settlement of the 2019 calendar.
On 29th June 2018, as already mentioned, the Mother filed two Notices of Appeal, one in relation to each of the sets of Orders referred to above.[1]
[1] The Father filed a Contravention Application on 27th July 2018. Because of the Appeal(s) pending, no date has yet been fixed for this Application.
The Notice of Appeal, file number EAA84/2018, appealed the Orders of 1st June on the following grounds:
In relation to the Orders of 1 June 2018
1) That the Primary Judge’s failure to allow an oral hearing amounts to a denial of procedural fairness.
2) That the Primary Judge erred in law in directing the parties to submit a form of (Consent) Order rather than himself making Orders in accordance with his reasons for judgment.
3) That his Honour’s Orders of 1 June 2018 demonstrate an error of law in so far as he:
a) Abrogated the judicial function to the parties; and/or
b) Abrogated the judicial function to the expert; and/or
c) Lack an appropriate head of power under the Family Law Act.
4) That in circumstances where the Court Ordered that the parties either present Consent Orders or in default of this the Court would make Orders in accordance with the Orders Sought by the father, the Primary Judge failed to have regard to the specific manner in which the Orders to be made satisfied the statutory requirements to be applied.
5) That the Primary Judge demonstrated an error of law in so far as he placed undue weight on untested expert evidence.
6) That in circumstances where the Court appointed Expert’s recommendation was not unambiguous the Primary Judge erred in Ordering the parties to interpret the recommendations of the expert and reproduce same as a Consent Order.
7) That his Honour’s reasons for judgment fail to engage with the relevant disputed evidence.
The other Notice of Appeal (EAA85/2018), filed on the same day appealed the Order of 18th June 2018 on the following grounds:
In relation to the Orders of 18 June 2018
1) That in Noting as the Primary Judge did that the “mother indicated that she could not file” a consent minute the Primary Judge a) implicitly made a finding contrary to the agreed position communicated to Chambers jointly by the parties and b) gives rise to a perception of apprehended bias against the mother as the basis for the Orders rather than the best interest of the child (Notation B).
2) That the Primary Judge failed to take into account relevant evidence.
3) That the Primary Judge demonstrated an error of law in so far as he placed undue weight on untested expert evidence.
4) That in making the Orders of 18 June 2018 in purported reliance on the untested expert evidence of the Court appointed Expert, the primary judge failed to give sufficient reasons for the manner in which his resulting Orders departed from the expert’s recommendation.
5) That the failure to accord the mother the benefit of an oral hearing or to tender material was a denial of procedural fairness and affected the legitimacy of the resulting orders.
In relation to both Notices of Appeal the following Orders were sought:
1) That the appeal be allowed.
2) That the Orders made by Judge Neville on 1 June 2018 be set aside.
3) That the matter is remitted to the Canberra Registry of the Federal Circuit Court for an interim hearing by a Judge other than Judge Neville.
4) That the matter is remitted to the Canberra Registry of the Federal Circuit Court for an interim hearing by a Judge other than Judge Neville.
Application for a Stay
Following the Mother’s filing of the Notice of Appeal referred to above, an Application in a Case was filed on 5th July 2018, seeking a stay of some of the Orders of 18th June 2018:
1) That the Orders 1, 4(a)(ii), 4(b)(ii), 4(c)(ii), 5, 6, 7 and 11 of the Orders dated 18 June 2018 made by Judge Neville in the Federal Circuit Court at Canberra be stayed pending the outcome of the appeal against those Orders filed by the mother; or, in the alternative, be stayed on the following terms:
a) The child spend time with the father every second Saturday from 10.00am until 4.00pm; and
b) Changeover shall:
i) Occur at the mother’s home, unless otherwise agreed between the parties; and
ii) Occur between the mother (or her agent) and the father, with any person accompanying the father to remain in the father’s vehicle at all times.
Submissions for the Mother
The following submissions were filed by the Mother on 21st September 2018 (after a brief explanation by the experienced solicitor for the Mother regarding an email being overlooked; noting too that Orders were otherwise available on the Commonwealth Court’s Portal) (internal citations omitted):
1) The applicant (“mother”) makes these submissions in support of her Application for a Stay of the Orders made on 18 June 2018 and relies upon the Affidavit of the mother filed with that Application and the evidence filed in the proceedings more generally. The mother proposes a stay on terms2 and as submitted to the Court on 23 August 2018.
Procedural matters
2) The Procedural Hearing in the Appeal occurred on 19 September 2018. The appeal has been allocated to the November sittings of the Full Court (the week of 26 November 2018) and the usual directions have been made with respect to further preparation.
3) The father has filed a Contravention Application relating to the same factual matrix. This creates certain difficulties for the Court.
4) It is not known when this matter will be allocated a final hearing.
The Stay Application
5) The stay sought on behalf of the mother ought to be granted. The principles for determining a stay application are well established. The key considerations identified in Alrdidge [sic] and Keaton are addressed (in summary form only) below. Certain of the principles are not controversial and will be addressed briefly in oral submissions.
6) There is no challenge to the bona fides of the mother in bringing the stay application: she acted without delay, has filed evidence about her concerns for the child in the event the stay is not granted and has continued to support a time arrangement between the child and the father consistent with her protective concerns for the child (and particularly about the impact of overnight time).
7) While the father is entitled to the “fruits of the judgment”, those considerations are to be weighed (among other things) against the risk the appeal will be rendered nugatory if the stay is not granted (which is described as a “substantial factor”) and the potentially serious adverse impacts upon the child, if the stay is not ordered. The burden for the father of the suspension of the Orders pending the November Appeal, must carry less weight than the risk to the child of the commencement of overnight time, if such proves to be as adverse as the mother’s evidence would suggest: that Iona is not readily managing the current spend time arrangement and is not ready to navigate the substantial change to overnights. The report of Ms W is more than 12 months old and pre-dates the mother’s evidence about the child’s continuing unsettlement, distress and sleep challenges.
8) It is proper to undertake “some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case”. It is respectfully submitted that the mother has a strongly arguable case on appeal, given the following matters:
8.1) The refusal of an oral hearing, in the face of repeated objection from the mother, was a denial of procedural fairness and natural justice and contrary to s54 of the Federal Circuit Court of Australia Act 1999 (Cth) and r 15.03 of the Federal Circuit Court Rules 2001 (Cth). While Your Honour was concerned this matter had unreasonably consumed scarce public resources its litigation history suggests otherwise: no interim hearing had occurred and the first such hearing (on the father’s application) was scheduled for 23 March 2018 (and vacated that day by the Court);
8.2) With respect, the Reasons indicate that His Honour failed to “engage with the controversy”, with little interrogation of the evidence in support of the competing proposals and of the disputed evidence. Lengthy extracts from the Report of Ms W are included in the Reasons but no consideration of the mother’s evidence about her continuing relevant experiences with the child. Respectfully, it is noted that this approach was directly criticised by the Full Court in Bartz and Manthey (No 2).
8.3) Undue weight was placed upon the untested evidence of Ms W and the opinion of Ms W was elevated to a status not consistent with the authorities (and it was almost 12 months old at the relevant time and pre-dated the contemporary evidence of the mother);
8.4) The parties were directed to formulate the orders in the first instance. This may represent an impermissible delegation of Federal judicial power; it is submitted that the recommendations of Ms W were ambiguous, the task was set without any indication from the Reasons of how the legal representatives were to approach it, or which of the Father’s orders sought are said to accord with her recommendations;
8.5) The Orders made were not in accordance with the father’s Minute; no opportunity for submission as to the form of orders was given; no notice was given by the Court that orders would be made, other than those sought by the father or the mother, and there was no opportunity to be heard about such;
8.6) The failure to properly evaluate and have regard to the mother’s evidence (identified previously) of the adverse effects on the child of being separated from her and her continuing sleep difficulties.
8.7) The Full Court has provided guidance as to how a court should approach contentious matters of fact in interim hearings: including Goode & Goode, Marvel v Marvel and Salah & Salah. It is respectfully submitted that the Reasons suggest a failure to properly evaluate and have regard to the evidence of family violence (appearing to accept the father’s evidence about this without proper evaluation).
Conclusion
9) There is considerable risk to the child in proceeding with the Orders pending the Appeal: the Terms proposed by the mother will adequately support her relationship with her father and shield her from the above identified risk and risk of imminent appellate reversal.
Submissions on behalf of the Father
The Father’s written submissions, filed 21st September 2018, were as follows:
1) The father opposes the mother’s Application for a Stay of interim orders made in these proceedings on 18 June 2018.
2) The fact of filing an Appeal does not cause the underlying orders to be stayed, and such an order should not be granted lightly or as a matter of course. The onus rests on the Applicant.
Whether refusing a stay would render the appeal nugatory
3) The mother’s appeal cannot be said to be rendered nugatory if the stay is refused because:
a) It is apparent on the face of the Mother’s submissions (filed 19 March 2018 at [17]) that she anticipates that [X] will spend overnight time with the father in the future. Parenting arrangements, especially those involving young children continue to develop over time, including the time between Court events. That said, even if the mother were successful in her appeal (which is not conceded, rather the prospects of the appeal seem most doubtful), and the interim matter remitted for re-hearing, then the intervening passage of time would surely require the mother to revisit the basis on which she says [X] should spend time with the father. That must, on any view, involve the liberalisation of time and the introduction of overnight time.
b) Thus, to say that the appeal would be rendered nugatory is tantamount to saying that children stop developing.
Entitlement of the respondent to the fruits of the judgment at first instance.
4) Prima facie, the father is entitled to the benefit for the judgment at first instance.
The relative hardship of granting or refusing a stay
5) The person whose situation is genuinely affected by the grant of or refusal of a stay is [X]. The orders give her the opportunity to further develop her relationship with her father in what is a modest and expertly guided manner (ie, the “light hand” of Ms W).
6) The mother’s affidavit evidence speaks to speculative concern for [X] being unable to cope and having problems sleeping and the like. The matters raised by the mother at paragraph 5 of her affidavit are vague and lacking any particulars, such that no weight could be given to them; and related to events that pre-date the Orders and could have been raised in submissions.
7) Subparagraph (k) indicates that the mother is willing to attempt overnight time for [X] with her maternal grandparents but not her father (as falls from paragraph 6 of the mother’s affidavit). Further, the mother does not, in any part of her evidence, countenance the hypothesis that [X]’s behaviour may be the result of her missing her father or being unsettled by reason of being the subject of an ongoing dispute, of which the mother plays one of two main roles.
The prima facie merits of the appeal
8) The Appeal grounds prima facie lacks merit.
9) Ground 1, relating to an apprehension of bias is unlikely to succeed on appeal. Although the mother asserted that she could not file a Consent Minute, she did not say why that was the case. If the “disadvantage” to which the mother’s solicitor referred in her letter dated 1 May 2018 (Reasons at 38, see last sentence) related to tendering of exhibits, it was incumbent on her to say so, rather than make such an opaque reference or fail to clarify her reference, particularly in light of the Court’s letter to the parties on 7 May 2018, in which they were alerted to the Court’s uncertainty as to “what might be said orally which cannot be put in writing” (Reasons at 39, page 15, penultimate paragraph). She cannot assert bias in circumstances where she did not articulate her desire to tender that material
10) Ground 2 of the Appeal Notice is without content and must fail. Ground 3 relates to the exercise of discretion. Such decisions are generally not amenable to appeal.
11) Ground 4 relates to the sufficiency of reasons for reliance on the untested expert evidence. At an interim hearing, where all evidence is untested, the judge is entitled to give weight to the evidence of an expert. The arrangement of time is, on any view, modest. This is not a case of a judge making wild leaps in relation to the child’s arrangements: the decision was essentially one of incremental change.
12) Ground 5 is unlikely to succeed on appeal given that the Court is entitled to control its own processes, including determining matters on the paper provided that procedural fairness is afforded (being the right to be heard, not the right to be heard orally). The content of “fairness” depends on the facts and circumstances of each case. The Court gave each party the opportunity to be heard. The constraints on the Court’s time and confounding factors were exhaustively explained in the Reasons at [21] to [44] of the Reasons, by reference to the relevant authorities.
Any delay in bringing the stay application
14) The mother has not delayed in filing an appeal or bringing a stay application. The likely delay in the disposition of the appeal. The average time between filing an appeal and the matter being heard in the Eastern Appeals Registry is about 15 months. Allowing time for the Full Court to deliver its Reasons and make orders, it is reasonable to expect that the appeal may not be concluded for about 18 or 20 months.
15) Such delays can be of themselves productive of an injustice and magnify the hardship visited upon the Respondent and, for the reasons outlined above, [X].
16) Furthermore, if the mother is successful on appeal, the matter would need to be remitted for hearing before a trial judge given that the orders sought by the wife require a re- exercise of discretion. In such a scenario, the delays and burden on the Court are magnified.
Submissions for the Independent Children’s Lawyer
The Independent Children’s Lawyer (“the ICL”) filed the following submissions in relation to the stay Application on 18th September 2018:
1) These submissions are in relation to an Application in a Case filed by the Mother for a partial stay of Interim Orders made by His Honour Judge Neville on 18 June 2018 until determination of an the Appeal filed by the Mother. The stay application relates to the time the child spends with her Father and changeover arrangements.
2) The current Interim Orders provided for [X] born 2018 (“the child”) to spend time with the Father at incremental increases over 3 month periods. The time with the Father was due to progress to overnight time after 19 September 2018.
3) The Mother has not complied with the incremental increase detailed in the Orders of 18 June 2018 and the child continues to spend time with the Father each Tuesday afternoon and each alternate Saturday. The ICL notes that the mere filing of the Appeal is insufficient grounds for the granting of the stay, it was therefore incumbent on the Mother to comply with the current Interim Orders.
4) It appears that the intention of both parties is that the child will continue to spend time with her Father. The Father seeks that the time increase to facilitate the development of a meaningful relationship between himself and the child.
5) The ICL notes that the onus is on the mother to establish the stay and that the father has obtained the judgement and is entitled to its benefit and to assume it is correct.
Relevant Authority and Legislative Pathway
6) The child’s best interests are the paramount consideration. In determining what is in the child’s best interest, there are distinct factors to be considered which are taken into account throughout the ICL’s submissions.
7) The appropriate authority in the determination of stay applications remains Aldridge v Keaton and set out in paragraphs [17] and [18] of the judgement of the Full Court are the relevant principles to be included, which are considered throughout the ICL’s submissions:-
· 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) The ICL submits that the relevant issues in relation to the child are;
i) The possible success of the Mother’s Appeal.
The mother’s grounds of appeal relate to whether the mother was afforded procedural fairness, whether there was a perception of bias against the mother and the weight placed on particular evidence by his Honour Justice Neville.
In regards to the possible success of the Appeal the ICL relies upon case law that stipulates that in determining a stay application it is rare to overturn a judge’s discretionary decision on grounds which involve conflicting assessments of weight given to particular matters
However, as per Kirby J in Bryant v Commonwealth Bank of Australia the “prospects of success will necessarily involve a matter of judicial impression” and it cannot be said that the appeal has no merit.
ii) The impact on the child should the Orders be stayed.
In practical terms the arrangements for the child would remain unchanged as the Mother has not complied with the current Orders. It is submitted that the current arrangement does not allow for the child to develop the meaningful relationship with her Father as envisaged by Ms W. Further, it remains unknown when the Appeal will be heard, and accordingly, how long the current arrangement will endure and the effect on the relationship between the child and her father.
iii) The impact on the child should the Order not be stayed.
Had the current Orders been complied with the child would now be about to commence overnight time with her Father. It is the view of the ICL that this is currently impractical and not in the child’s best interests given that the child is currently only spending 12 hours per fortnight with her Father which does not include overnight time.
9) The ICL submits that in the event the Orders are not stayed and the mother’s appeal is successful it is in the best interests of the child that the arrangements should not be significantly changed pending the Appeal.
10) The father seeks that overnight time with the child commence prior to the determination of the mother’s appeal. The ICL does not support this proposal.
11) The Mother’s Application in a Case seeks, pending the Appeal, that the child spend 6 hours per fortnight with her Father. However, the Mother’s Affidavit of 3 July 2018 seeks an arrangement reflecting the current circumstances continue. The ICL does not support either proposal.
12) The ICL submits the stay should not be granted but that the Orders dated 18 June 2018 should be varied to allow the extra time with the father to increase as per Order 4 a) ii) of these Orders pending the Appeal. It is submitted that to commence overnight time and then have the time suspended if the Appeal is successful, would not be in the child’s best interests.
Outline of Principle
I note the following from the Full Court’s decision in Aldridge & Keaton (Stay Appeal).[2] At [17] – [18], the Court said:
[2] Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106. For a more recent discussion, but no formal ruling, by a differently constituted Full Court (Thackray, Ainslie-Wallace & Murphy JJ) of stay applications, where Aldridge & Keaton (Stay Appeal) was distinguished but the comments of Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Limited [1986] HCA 84; (1986) 161 CLR 681 were further considered, see Anderson v Senior (Stay Appeal) [2013] FamCAFC 152; (2013) 279 FLR 399; (2014) 50 Fam LR 21 at [35], [37] and [38]. See also the comments of the Full Court (Warnick, Boland & May JJ) in K & B [2006] FamCA 848; (2006) FLC 93-288.
[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.
I remind myself of the oft-cited statement of principle by Stephen J in Gronow v Gronow, where his Honour said (emphasis added):[3]
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight. In the present case it should not have done so at all.
[3] Gronow v Gronow (1979) 144 CLR 513 at pp.519-520.
In the same case, Aickin J (with whom Mason and Wilson JJ agreed at p.526) said (at pp.537-538) (emphasis added):
Statements of the general principles to be applied by an appellate court when asked to set aside an order made in the exercise of a judicial discretion generally include a reference to the trial judge giving inadequate weight to some factors and excessive weight to others. It is however a mistake to suppose that a conclusion that the trial judge has given inadequate or excessive weight to some factors is in itself a sufficient basis for an appellate court to substitute its own discretion for that of the trial judge. As Kitto J. said in Lovell v. Lovell (1950) 81 CLR, at p 533:
“The proposition that the appeal court will consider whether 'no sufficient weight' has been given to relevant considerations is not inconsistent with the principle that the appeal court does not deal with the appeal as if it were exercising the original jurisdiction; even if it considers that insufficient weight has been given to some relevant consideration, it will still not substitute its judgment for that of the primary judge unless it comes clearly to the conclusion for that reason that the discretion has been exercised wrongfully.”
15. It is clear that that test will not be satisfied merely by reason that the appellate court, considering the matter de novo, would itself have arrived at a different result. The fact that a decision on custody depends upon the exercise of a judicial discretion recognizes that in many cases different minds may arrive at different conclusions.
16. The advantage which a trial judge has of seeing and hearing the witnesses is of particular importance in matters of custody where so much depends on an evaluation of the characters and personalities of the parents, and their attitudes, not only to the child, but also to each other. The attribution of comparative weight or importance to various factors will generally be influenced by the impression formed on seeing and hearing each parent, and in appropriate cases the child or children involved. Some objective matters such, for example, as relative financial resources and adequacy of accommodation may stand in a different position but in the present case it is not suggested that any error occurred in that respect.
I also remind myself of the observations by Kirby J in CDJ v VAJ, where his Honour said, at [185, par.2] (internal citations omitted; emphasis added):[4]
Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction.
[4] CDJ v VAJ (1998) 197 CLR 172.
Consideration & Disposition
A first and important observation to make is to repeat the obvious fact that the interim decision is a discretionary judgment. In the principal judgment, a number of decisions from the High Court, and the Full Court of the Family Court, are referred to regarding the proper approach to such judgments, including the relevant weight to be given to evidence, especially at an interim determination. I need not, and will not, repeat those references.
I will, however, note the following further related comments.
In Strahan & Strahan, the Full Court (Coleman, May and Austin JJ) said, at [70] and [71] (emphasis added):[5]
[70] So far as the complaints that the trial judge failed to “pay any or sufficient regard to the concerns expressed by the wife” about the matters referred to in Ground 2 is concerned, as senior counsel for the wife frankly acknowledged, there are substantial obstacles to success with “weight” challenges of this kind. (See Stephen J in Gronow v Gronow (1979) 144 CLR 513, at 519-20).
[71] The proceedings before the trial judge were interlocutory. None of the evidence before his Honour was tested or sought to be tested. That is not said critically of counsel for the parties, but the reality is that the trial judge did not gain the advantage which traditionally flows from seeing and hearing witnesses cross-examined. (See State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588 (“Earthline”) per Kirby J at 619). As the trial judge’s review of the evidence before him reveals, each party made allegations of fact which were not on their face inherently improbable. Although genuinely held, the concerns articulated by the parties were in the nature of unqualified opinions.
[5] Strahan & Strahan [2010] FamCAFC 83.
If such statements of principle, both from the High Court and the Full Court relevantly obtain, they would (and should), in my view, relevantly apply in the present matter. Here, the Court was (and remains) faced with competing contentions by the parties, which essentially amount to “unqualified opinions” or assertions. Neither of these “unqualified opinions” were sufficient to prevent the parties entering into consent Orders on 15th May 2017, thereby indicating that there were no obvious, or sufficiently serious, impediments to [X] spending time with her Father. The only issue then, as now, was the frequency of that time.
The parties obtained a Report from an acknowledged Expert. The Report from that Expert provided a thorough assessment of the parties and the child, and in consequence recommended a very graduated, cautious regime in the increase of [X]’s time with her Father.
As with almost all interim determinations, the evidence before the Court is not (and at this stage, cannot) be tested. Such was the case here. Faced with the competing “unqualified opinions” from each of the parties, the Court relied upon the independent, Expert Report.
In the appeal, the Mother complains that there was too great (“undue weight”) a reliance by the Court on that Report (Ground 3 of EAA 85/2018). How one divines what constitutes too heavy or too great, or “undue weight”, a reliance upon expert evidence in interim determinations, is not elucidated by the Mother. This is rather a complaint without a solution. If the Court had made different Orders, the Father may have complained about the Court placing too little weight or emphasis on the Report. Such complaints are a bit like assessing which bed is “just right”, rather than too hard or too soft. It is, ultimately, a matter of the exercise of discretion, here based on an independent Report. And no “alternative” expert evidence was provided by the Mother – or anyone else.
In Sigley v Evor, a differently constituted Full Court (O’Ryan, Strickland and Benjamin JJ) said in somewhat similar terms (albeit in the context of an appeal from a final hearing), at [128] – [129] (emphasis added):[6]
[6] Sigley v Evor (2011) 44 Fam LR 439.
Discretionary judgment
[128] This is an appeal against a discretionary judgment and the principles to be applied are well established: House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513; Norbis v Norbis (1986) 161 CLR 513 and CDJ v VAJ (1998) 197 CLR 172.
[129] We are mindful of the position of the Federal Magistrate in relation to complaints about assessment of weight where no error of law or fact is obvious: see Gronow v Gronow at 519-20 per Stephen J. We are also mindful of the necessity to avoid “an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved”: see AMS v AIF (1999) 199 CLR 160 per Kirby J at 211; A v J (1995) FLC 92-619 per Full Court (Fogarty, Lindenmayer and O’Ryan JJ) at 82,232 and Rollings v Rollings (2009) 230 FLR 396 per Full Court (Boland, O’Ryan and Murphy JJ).
More specifically, and in addition to what has already been said, the grounds of appeal may be considered as follows.
First, the “procedural fairness” issue and the lack of an interim hearing in Court, which is Ground 1 in EAA84/2018. I note the following:
(a)The Court cannot provide what it does not have. This is especially so in relation to allocating “time” in Court. The unfortunate confluence of factors which led to the directions/interim hearing listed in this matter being vacated, including (i) the volume of matters before the Court (across jurisdictions, including but not limited to family law), (ii) multiple listings in order to accommodate a number of pressing matters, and (iii) an “over-run” in a trial under the Fair Work Act, are set out in the reasons under appeal. It is otiose to repeat them;
(b)Likewise, the range of authorities relating to the requirement that a party have an opportunity to put her or his case, as opposed to every single matter having an allocated time in Court, are also set out in the reasons. Those authorities are not addressed in the Mother’s submissions. Again it would be otiose to repeat what is already set out in the principal reasons;
(c)The relevant statutory and regulatory provisions under which this Court operates are also set out in the principal reasons. The Mother seeks to put a different focus, emphasis and application on them, without being cognisant (other than in very general terms), of the immense and incessant demands on the Court’s limited, indeed scarce, public resources. To accede to the Mother’s proposition that, in effect, there must invariably be a hearing in open Court with no possibility of the matter being determined on the basis of written submissions if circumstances require or otherwise demand, would (i) add even more pressure on the scarce resources of the Court, (ii) slow down even further the determination of (particularly interim) matters, noting that parties regularly agree to have their interim issues dealt with by way of written submissions; some practitioners even request that this occur in order to save their parties time and cost and to assist the Court, and (iii) lead to even more delays in making Orders that are in the best interests of children who are/were awaiting such determination and whose matters could not reasonably, or reasonably quickly, be accommodated by an interim “hearing” in Court;
(d)It was in [X]’s best interests to have a decision made sooner, rather than later, regarding the regime of time she should spend with her Father. In the circumstances that transpired that could only be done as expeditiously as possible by way of written submissions;
(e)As set out in the principal reasons, despite multiple times requesting information, the Mother’s highly experienced solicitors have never articulated what substantive matters they contend could only be stated in open Court and, conversely, what could not be stated in written submissions. The Court still anxiously awaits to be enlightened in this regard.
The next issue relates to a complaint that there was an unauthorised “delegation” to the parties to formulate Orders, rather than the Court doing so (Grounds 2 and 3 of EAA 84/2018). The obvious and basal distinction between a “direction” by the Court, and a “delegation”, seems to have eluded the Mother on this occasion.
Multiple times every week, Courts around the country publish reasons and conclude by saying words in the following (or similar) terms: “The parties are to bring in Short Minutes of Orders to give effect to these reasons within fourteen days.”[7]
[7] To give only two examples here, see Flick J in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The BKH Contractors Case) (No.2) [2018] FCA 1563; and the same Justice in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] FCA 42.
In addition to the examples already given, I note that in Lifeplan Australia Friendly Society Ltd v Ancient Order of Foresters in Victoria Friendly Society Ltd the Full Court of the Federal Court of Australia said, at [125]: “The appellants should bring in short minutes within 14 days to provide for these matters conformable with the reasons of the Court …”[8]
[8] Lifeplan Australia Friendly Society Ltd v Ancient Order of Foresters in Victoria Friendly Society Ltd (2017) 250 FCR 1.
If the Federal Court of Australia, including the Full Court of the Federal Court, can give such a direction (as opposed to a delegation) in highly complex matters, such as under the Fair Work Act (in the matters determined by Flick J), and in a high stakes equity claim for an account of profits and breach of fiduciary duty matter before the Full Court on an appeal, it seems to me that Courts dealing with family law matters may reasonably expect that highly experienced lawyers are (or should be) no less competent than lawyers in other jurisdictions. Such lawyers are more than astute enough to glean from the reasons given what the Orders are to be as proposed by the Court.
In the current matter, I respectfully suggest that the 50 pages of reasons, and the detailed highlighting of the Expert Report, together with the default Orders made in the absence of agreement between the parties, made it abundantly clear to the lawyers involved what was to be done.
Moreover, as already noted, the basic, almost elementary, distinction between a direction by the Court, which was made here, as opposed to a “delegation” as proposed by the Mother, is clear. Respectfully, surely lawyers in non-family law matters, who recognise such a distinction, and who, as a matter of course, follow and act upon such directions, are not more astute than those who practice in family law. True it is that family law is beset by parties who do not, or who cannot, or who will not, agree upon even the most basic of things. To speak generally, lawyers who labour in this jurisdiction should not, and most do not, foment such disagreement.
To repeat: the Court gave a “direction” for the filing or a Minute or Orders, and in the absence of agreement, it provided for a certain course. The Court did not “delegate” any relevant function. Such an assertion is untenable. If it was sustainable, many Courts would again be overly burdened and in consequence be less efficient. Further, if the argument was relevantly sustainable, perhaps it could be run before any of the Federal Court Justices who make such a direction every other day. In my view, it is no answer, should it be thought to so argue, that family law is so specialised a jurisdiction that only the Court should make Orders, and not leave it to practitioners to negotiate an agreed way forward in the light and context of the Court’s detailed reasons. Highly experienced lawyers, such as those in this matter, are totally capable of working out relevant Orders that comply with the reasons.
Finally on this aspect, so far as the Court is aware, there was no Application by the Mother to seek clarification of the Orders of the Court in the light of the reasons provided. Accordingly, if there be either confusion and or disagreement, one might ask rhetorically, why not?
The final matter to address is the reliance by the Mother (see Ground 5 of EAA 84/2018) upon what has now come to be known, in certain circles, as “the Zombie judgment.”[9] I can say this because it is a judgment of mine.
[9] Bartz v Manthey (No.2) [2018] FamCAFC 109.
On appeal before Ryan J, sitting alone as the Full Court, her Honour accepted a submission from former Justice of Appeal, learned Senior Counsel, Mr Coleman SC, relying upon comments in a migration appeal in the following terms:[10]
… when a decision maker is required by statute to consider a claim or other mandatory criteria, the decision maker must engage in an active intellectual process directed at that claim or criteria … This does not require the decision-maker to refer in the reasons for decision to every piece of evidence and every contention made by an applicant, and it may be that some material provided will not be relevant to the criteria. Also, in accordance with well-known authority, the reasons of the decision-maker should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error” …
[10] Carrascalao v Minister for Immigration (2017) 252 FCR 352; [2017] FCAFC 107 at [45] per the Court (Griffiths, White and Bromwich JJ).
Her Honour found that in the interim decision by me in that matter, which (like the present matter) involved only the question of the child’s time with the Father, there had not been “active intellectual engagement” in the decision-making process in coming to the conclusion and Orders made. Hence the somewhat parochial reference to “the Zombie judgment”, whereby a trial Judge, especially in interim proceedings, effectively (so it is implied or otherwise suggested) “sleep-walks” through the process by “reciting” rather thoughtlessly the prescriptions, known as either the “legislative pathway” or “legislative scaffold”, set out by the Full Court in Goode v Goode in arriving at the conclusion and Orders. Clearly making a decision (a) to reject or not follow either of the “unqualified opinions” of each of the parents, and (b) to choose to follow the only independent evidence before the Court, namely from the Family Consultant, was insufficient “intellectual engagement” for the purposes of that appeal.
With the greatest of respect to two of the most eminent and highly respected Justices of Appeal, who sat on the Appeal Division of the Court at the same time, both genuine illuminati from the same Court (one still sitting, one now eking out a living at the Bar after many years on the Bench), I make the following observations regarding Bartz v Manthey (No.2).
Respectfully, it now poses a considerable difficulty for parties, practitioners, Judges at first instance, and ultimately (I respectfully suggest) for the Appeal Court too because it was decided without any reference to a particular, consistent line of Full Court authority that would otherwise, and reasonably be expected to, obtain, but for the curious appropriation of an authority from the realm of migration jurisprudence. That authority includes decisions of Coleman J as he then was. Let me explain.
In Bartz v Manthey, as already indicated, there was an appeal against an interim decision regarding the young child’s time with the Father. At the time of the appeal, the final hearing had been fixed, and a full Family Report ordered. In fact, the final hearing was scheduled for some six weeks or so after the hearing of the Appeal, and the parties had already undertaken their interviews for the Family Report.
Further, in that matter, there were competing claims that were, again, effectively “unqualified opinions” from each of the parties. The Court had before it a strongly-formed and articulated, independent Family Report which provided a solution to the parental impasse regarding a regime for the “time-with” arrangements between the child in that matter and his Father. In my view, on an interim basis, the solution provided by the Family Report constituted an appropriate solution. To come to that decision, and to see that resolution involved both reading the Report and determining that it provided a solution to the current imbroglio. But clearly Mr Coleman SC, and her Honour, thought this course and this resolution was not, at least procedurally, or otherwise apposite. Respectfully, this would seem to be an exercise in “degrees” of “consideration.”
In any event, the “usual” authorities that [would] typically come into play in such cases include the following. It is perhaps apposite simply or primarily to refer to a decision of Coleman J, sitting as the Full Court, in Tobey v Rezek, where his Honour said, at [70] – [72]:[11]
[70] Whilst the absence of practical utility of an appeal may not have been apparent prior to the allocation of a date for hearing of the appeal, from the moment it was realised that the appeal against the interim parenting orders would be heard on 21 March 2011, two months before the final hearing would take place, continuance of the appeal became an exercise devoid of practical utility. That is particularly so given that the orders of the Federal Magistrate of 9 September 2010 were not stayed. The father did not seek a stay of those orders.
[71] In Reece & Reece [2011] FamCAFC 24, Strickland J discussed the “difficulties associated with appeals from interim parenting orders where a final hearing has been listed to commence within a relatively short time frame”. In that case, despite finding merit in the appeal, Strickland J dismissed the appeal in view of the futility of allowing it in circumstances where there was insufficient time in which to either re-determine or re-hear the interim matter prior to the final hearing. The decision has application to this case.
[72] Accordingly, even if, contrary to the Court’s conclusions in that regard, the father has demonstrated appealable error on the part of the learned Federal Magistrate, for this Court to do other than dismiss his appeal would constitute an abuse of the Court’s processes, as no interim hearing would be likely to take place.
[11] Tobey v Rezek [2011] FamCAFC 86.
In the week prior to Ryan J’s decision in Bartz & Manthey (No.2), Murphy J made similar comments, in a slightly different, but not dissimilar, context regarding the “utility of an application in an appeal”. In Dickens & Carey, his Honour (also sitting as the Full Court) said, at [28] – [29]:[12]
[28] A central question which arises and which, with respect, could not be answered on behalf of the father, is what utility there is in a successful appeal against the interim parenting orders when a final trial of those issues will occur some weeks after the determination of the appeal. Counsel for the mother argues the appeal has no utility at all.
[29] No argument raised by the father persuades me of any real utility of the appeal in the circumstances of this case.
[12] Dickens & Carey [2018] FamCAFC 135.
Clearly, learned Senior Counsel (Mr Coleman SC) for the Appellant in Bartz & Manthey (No.2) was highly familiar with the authorities to which I have just referred, not least because one of them was a decision of his. For reasons not apparent from her Honour’s judgment, there is no reference to any of these decisions in Ryan J’s reasons. This necessarily now leaves parties, practitioners, Judges at first instance, and especially Justices of Appeal, in the predicament of not knowing where the Full Court decisions of Strickland J, Coleman J and Murphy J stand, regarding appellate review of interim decisions (whether there be some appellable error or not), where there is an imminent final hearing, or whether everything is now subsumed into the new catch-all ground, perhaps curiously borrowed from administrative law rather than family law, of questionable (or no) “active intellectual engagement.” “We” all wait keenly for further clarification or illumination.
Further, in response to the contention in the present matter that there has not been a proper evaluation of the evidence, especially (but not only) in relation to family violence, I say the following:
(a)No such contentions or matters prevented the parties from consenting to interim parenting Orders in May 2017. Yet now the Mother raises such matters. Either the family violence [now] complained of was an issue prior to and at the signing of those Consent Orders or it was not;
(b)The Family Report of Ms W, dated 26th July 2017, runs to 102 paragraphs. The primary interim judgment runs to 50 pages and 82 paragraphs (excluding the multiple internal sub-paragraphs). Paragraphs 30 – 102 of Ms W’s Report are extracted from and inserted into the judgment of which 21 paragraphs are highlighted in part or in whole. One might reasonably think, if not actually conclude, that I must have (a) read the Report and (b) made conscious and calculated decisions regarding (i) what to extract from it to put into the judgment and (ii) in what had been extracted from the Report, what to highlight. Respectfully, such is not an exercise that can be done without “active intellectual engagement”. One might also reasonably expect that such “joining of the dots” is an exercise that is readily, if not reasonably, able to be performed by family lawyers, as it is regularly done by lawyers in other jurisdictions. Moreover, to have para-phrased and explained the sections of the Report that were highlighted, would have been a significant exercise in supererogation. The Court should be able to expect experienced practitioners to be able to comprehend the sections of the Report that were highlighted and why. Presumably they were highlighted because the Court actively considered them to be of particular significance, especially when faced with the competing and conflicting “unqualified opinions” of the parties. Put another way, it would have been insulting to the parties, and especially to the knowledgeable, skilled and proficient lawyers, to have repeated and paraphrased what had already been said [and then highlighted] in the Report of the Expert;
(c)Moreover, subject to the evidence and submissions at a final hearing (which is now fixed for August 2019), among other things, the Mother’s concern about [X]’s behaviour after spending relatively modest amounts of time with her Father will be able to be tested. Included in that examination will likely be the following considerations: (i) given that the child spends most of her time with her Mother, her maternal Grandparents, and in other extra-curricular activities, and conversely rather less time with her Father, it may be that her somewhat/sometimes aberrant behaviour and distress is simply and precisely because she is not spending more time with her Father, which she in fact wishes to do; (ii) given that the child spends most of her time with her Mother, her maternal Grandparents, and in other extra-curricular activities, and conversely much less time with her Father, it may be that her somewhat/sometimes aberrant behaviour and distress is because there is something going on with one or more of these associations and [maternal/Grandmaternal etc] relationships that are causing her distress; and or (iii) given that there does not appear to have been any general or specific complaint about the child’s behaviour following the operation of the consent Orders of May 2017, but more relevantly in more recent times, it will of course be relevant (to the degree apposite) to explore the respective contentions by each of the parties, including the Mother’s claims regarding family violence, notwithstanding that she and the Father (as I have noted) made Orders by consent in May 2017 regarding the child’s time with the Father.
By way of post-script to the Bartz & Manthey (No.2) decision: the imminent final hearing was vacated (as the parties had been advised beforehand it would be if the appeal was successful), the full Family Report strongly castigated the Mother for not promoting the young child’s time with the Father, and a further hearing was fixed before another Judge many months away. I do not suggest that there was “game-playing” in that matter (or in this matter either). That said, in that matter, the delays (I say nothing of the costs) that necessarily flowed from the appeal, in many respects, suited the Mother’s strategic and other purposes. But ultimately, the only loser was the child, and the only “winners” were the lawyers, respectfully. Such is a usual and increasingly common lament, which I have already made in certain respects in the principal judgment.
On a final note: in the Mother’s submissions, she refers to various cases regarding the conduct of interim proceedings, including of course, the fons et origo Full Court decision in Goode v Goode.[13] It would appear that she has not appreciated the multiple Full Court references in the primary judgment to the cases, at footnote 15, which are also statements regarding the conduct of interim proceedings, by reference to Goode, and taking into account expert evidence.
[13] Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422.
In mediæval scholastic circles, it was a common practice, albeit ultimately a somewhat futile exercise, to try to work out how many angels, at any one time, danced on the head of a pin. It might be said, with all due respect, that assessing the prospects of success of an appeal, especially in relation to an interim, discretionary judgment, is a similarly fraught exercise.
Alternatively, assessing the prospects of success of the appeal is rather like presiding over one’s own execution, or less dramatically/more prosaically, like marking one’s own homework. That said, having regard to the appeal concerning an interim, discretionary judgment, where the only certainty is that nothing is certain, I respectfully assess the prospects of success as low.
As a general observation only in relation to what could be said to characterise much that passes for family law litigation: over the past decade or so, anecdotally and otherwise, it would seem that there is much less discernment (at least by some practitioners) in the conduct of appeals, especially in interim matters. And as with many matters at first instance, so also on appeals, there are many matters where it seems that the approach is something like “well, let’s just throw anything and everything at the Court door and see what sticks.”
More relevantly and more importantly, in the present matter it would not be in [X]’s best interests to allow it. I say this for the following – brief – reason(s).
If the appeal is successful, the Mother seeks to have the matter remitted for interim hearing to be conducted by a different Judge, which presumably would require another report. In such circumstances, the last 12 to 18 months will have been wasted - except for the lawyers - respectfully. Rather than using all the resources that have been expended to work out a more irenic solution, the parties now seem to be in a more entrenched and intractable position, a litigious “fight to the death” spiral where the parents and the child (and other relatives) will all suffer from the contest, and likely do so for years to come. Another lament – respectfully.
Three final comments may be made. Again they add to or may be characterised as being more in the “lament” category.
First, in the recently released, voluminous Australian Law Reform Commission Discussion Paper, at par. 1.42, there is the following, self-evident proposition:
Central to these calls was a view that adversarial processes tend to escalate conflict between separating parents, and concerns about the flow-on impact of this on children’s wellbeing. More generally, many saw the use of an adversarial model as being poorly adapted for dealing with family conflict.
Secondly, at a recent meeting of the Judges of this Court there was an address by Chief Justice Allsop of the Federal Court of Australia. His Honour commented, in a different context to be sure, that the cost of litigation was a “first world extravagance.” Respectfully, I agree. This was, and is, simply yet another reminder, however plaintive it might be in the current proceeding, that expensive family law litigation ultimately has limited utility in resolving (let alone in aiding any peaceful healing of) the fractious, tender, brittle, emotionally-fraught and always potentially scarifying broken relationships of the parties and the innocent children who are caught in the middle.
Thirdly, in a very recent judgment, UBS AG v Tyne, Gordon J said (at [125] and [128]; internal citations omitted):[14]
[125] Over the last 20 years, there has been a "culture shift" in the conduct of civil litigation. The legal system has faced, and continues to face, great challenges in providing appropriate mechanisms for the resolution of civil disputes. Cost and delay are long-standing challenges. The courts and the wider legal profession have an obligation to face and meet these and other challenges. Failure to respond creates (or at least exacerbates) hardship for litigants and potentially results in long-term risks to the development, if not the maintenance, of the rule of law.
[128] It is now trite that courts and participants in civil proceedings must, in terms, "facilitate the just resolution of disputes: (a) according to law; and (b) as quickly, inexpensively and efficiently as possible" …
[14] UBS AG v Tyne [2018] HCA 45.
There is a certain irony in the present matter where (a) rather than delay the interim determination, the Court is criticised for having taken such steps, indeed the only possible course, it had available to it in the circumstances, namely to deal with the interim matter by way of written submissions, and (b) yet also, by way of criticism for allegedly failing to comply with particular sections of its own, founding legislation (which is, among others, in fact cited in the principal judgment) that call upon the Court to deal with matters in accordance with the principles articulated by Gordon J. Again, without being hyper-critical, to put things somewhat colloquially: the Mother seeks to have it “both ways.”
Otherwise, I accept and adopt the submissions of both the Father and the Independent Children’s Lawyer, both of whom resist the Appeal and the Application for a Stay. The current Application by the Mother for a stay of the Orders must be refused.
In all the circumstances, the Court proposes simply reserving the parties’ costs.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 16 November 2018
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