Jennings & Jennings (No 2)
[2022] FedCFamC1F 116
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jennings & Jennings (No 2) [2022] FedCFamC1F 116
File number(s): BRC 3275 of 2019 Judgment of: HOWARD J Date of judgment: 7 March 2022 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Stay application –application to stay final parenting orders permitting international relocation to New Zealand – weighing of various considerations applicable on a stay application – stay application dismissed. Legislation: Family Law Act 1975 (Cth) ss 60CC, 61DA, 65DAA
Family Law Regulations 1984 (Cth) reg 24
Care of Children Act 2004 (NZ) ss 8, 81, 82, 85
Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children Art 24, 26
Cases cited: Aldridge & Keaton [2009] FamCAFC 106
AMS v AIF (1999) 199 CLR 160
Banks v Banks (2015) FLC 93-637
Bennett & Bennett (1990) 102 FLR 370
Cape v Cape (2013) FLC 93-549
Collu v Rinaldo [2010] FamCAFC 53
Cox v Pedrana (2013) 48 Fam LR 65
Devries v Australian National Railways Commission (1993) 177 CLR 472
DL v The Queen (2018) 266 CLR 1
EJK v TSL (No.2) (2006) 35 Fam LR 590
Harridge v Harridge [2010] FamCA 445
In the Marriage of N and S (1995) 19 Fam LR 837
M v M (1988) 166 CLR 69
Panneton & Delauder [2021] FamCAFC 102
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Trahn & Long (No.2) [2008] FamCAFC 194
Trahn & Long [2008] FamCA 922
Wen v Thom [2010] FamCAFC 81
Division: Division 1 First Instance Number of paragraphs: 78 Date of last submission: 2 March 2022 Date of hearing: 2 March 2022 Place: Brisbane Counsel for the Applicant: Mr Bunning Solicitor for the Applicant: SJP Law Solicitor for the Respondent: Keyworth Harris & Lowe Family Lawyers Counsel for the Independent Children's Lawyer: Mr Dodd Solicitor for the Independent Children's Lawyer: Life Law Solutions ORDERS
BRC 3275 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR JENNINGS
Applicant
AND: MS JENNINGS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOWARD J
DATE OF ORDER:
7 MARCH 2022
THE COURT ORDERS UNTIL FURTHER ORDER:
1.The Court will hear submissions as to the wording of orders to reflect the reasons for judgment delivered 7 March 2022.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Jennings & Jennings has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOWARD J:
This is an application for a stay of orders pending an appeal. The applicant father is Mr Jennings.
The respondent mother, Ms Jennings, opposes the application for a stay.
This matter proceeded to a final hearing on 16, 17 and 18 June 2021. The last submission was received by the Court on 22 September 2021. Judgment was delivered on 16 December 2021. The parties were given time to submit orders reflecting the reasons for judgment. The parties (including the Independent Children's Lawyer) made submissions in relation to the wording of the orders.
A final order was made by the Court on 15 February 2022. That order (including notations) is in the following terms:-
“IT IS NOTED THAT:
A. The hearing of this matter took place on 16, 17 and 18 June 2021;
B. The last submission was made on 22 September 2021;
C. Reasons for Judgment were delivered on 16 December 2021;
D.The Court allowed the parties time to submit draft orders reflecting the reasons for judgment; and
E. This final order reflects the reasons for judgment.
THE COURT ORDERS ON A FINAL BASIS:
1. That all previous parenting Orders be discharged.
2.That the mother be permitted to relocate the residence of the child [X] born […] 2015 (“the child”) to New Zealand.
3.That such relocation occur within fourteen (14) days of the making of these Orders.
4. That:
a.On the making of these Orders, the mother shall make all necessary arrangements with [Airline AA] for the child to travel to New Zealand and shall advise the father of the date, time and flight details;
b. The child is to travel by [Airline AA];
c.The mother shall travel to Australia to collect the child after the child has passed through security screening and accompany the child back to New Zealand; and
d.The father shall deliver the child to the […] Airport and shall ensure that all the child’s travel documents, including the child’s passport are delivered with the child to the International Check-In for [ Airline AA] and hand the child over to a representative of [Airline AA].
5.That the mother shall be responsible for any costs associated with the child’s initial travel to New Zealand.
6.That the mother shall be responsible for all costs associated with any managed isolation and quarantine of the child on arrival in New Zealand.
7.That within two (2) days of the date of these Orders the father provide the mother:
a.the details, including names, addresses and contact details of the child’s treating medical professional and allied health persons;
b. A copy of the child’s birth certificate;
c. A copy of the child’s passport.
Parental Responsibility
8.That the mother have sole parental responsibility for the major long term issues for the child.
9.That within seven (7) days of making a major long term decision for the child, the mother will notify the father of the decision made.
Living Arrangements
10. That the child live with the mother.
11.That the child spend time and communicate with the father at all times as agreed in writing between the parents and failing agreement as set out in these Orders.
12. That the child spend time with the father for school holidays as follows:
a. Such time to take place in Australia only;
b.Insofar as it is possible, such time to occur when the child’s sister [Y] is spending time with her father in Australia, but no limited to those occasions;
c.For the shorter school holidays at the end of Term 1, Term 2 and Term 3:
i.For a period of 10 nights commencing on the first Saturday following the conclusion of the school term and concluding 10 nights later; and
d.For the longer school holiday periods (namely, the Christmas School Holiday periods) for one half of the school holiday period, as follows:
i.In even numbered years for the first half commencing on the first Sunday following the conclusion of the school term and concluding on the day calculated to be one half of the school holidays; and
ii. In odd numbered years for the second half for a period calculated to be one half of the school holidays calculated to conclude approximately one (1) week prior to the recommencement of the new school year.
Travel Arrangements and Costs
13.That for the purposes of the child spending time with the father pursuant to these Orders:
a.the father shall pay the child’s airfare from New Zealand to Australia and the mother shall pay for the return flight from Australia to New Zealand;
b.such travel arrangements will, insofar as it is possible, be coordinated with travel arrangements for the child’s sister [Y] to spend time with her father [Mr B]. The child will travel in the company of his sister [Y] on the same aircraft, if so co-ordinated;
c.That upon receiving notice from the father of his intention to spend time with the child at the beginning of each year, the mother will liaise with [Mr B] to arrange the travel times for [Y] and notify the father of [Y’s] flight details;
d.such travel arrangements will be made at least twenty-one (21) days prior to the school holiday period with the parents at liberty to book and pay for flights in advance;
e.the parents will each ensure that they have a copy of the travel itinerary for the child on purchase of the ticket and any amendments to the flights are to be notified to the other parent as soon as possible;
f.that if either party is not personally transporting the child to or from the airport, they tell the other party in advance who will be doing so that the child can travel in accordance with the “child travel alone scheme”;
g.that the parties be guided by the respective health directions of the Government within their own Country and State; and
h. that the child travel as part of the “child travel alone scheme.”
Telephone/Video-Communication with the child
14. That while the child is living with or spending time with either of the parents:
a.The child be at liberty to speak with the other parent by telephone, Facetime or other video facility on any occasion that he requests to do so;
b.the parents will ensure the child has available a phone or device with sufficient phone charge and data to communicate with the mother;
c. the child be given privacy during such calls;
d.the child communicate with the parent he is not spending time with pursuant to these orders by telephone, FaceTime or other video facility each Tuesday, Thursday and Sunday at 5.00pm (New Zealand Time) when the child is in New Zealand and 5.00pm (Australian Time) when the child is in Australia; and
e.should a call be missed the call will be facilitated by the parent the child is living with on the following day at the nominated time with the fixed days in (d) continuing regardless of any make up call.
Communication between parents
15.That, save for cases of emergency, when it is necessary to exchange information or to discuss issues about the child the parents will communicate via a parenting application agreed by the parents and failing agreement then the Talking Parents application.
16. That during the time the child is with either parent that parent shall:
a.Respect the privacy of the other parent and not question the child about the personal life of the other parent;
b. Speak of the other parent respectfully;
c.Neither parent shall denigrate the other or allow the other parent to do so in the presence of the child; and
d.Not discuss matters of an adult nature, including these proceedings, with the child or in the child’s presence or hearing and that the parents shall use their best endeavours to ensure that no other person discusses matters of an adult nature with the child or in the child’s presence or hearing.
17.That this order is authority for all schools and other care providers of the child to give each parent information about the child, including but not limited to records, educational progress and other school related activities, school reports, newsletters, certificates and awards obtained by the child (at the cost of the requesting parent).
18.That each parent shall keep the other parent informed of the child's doctors, health care or other treatment providers and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child and this order shall act as such authority.
19.That each parent shall inform the other parent as soon as reasonably practicable of any significant medical condition, significant health issue or significant illness suffered by the child and authorise any treating medical practitioner to release the child’s medical information to the other parent and this order shall act as such authority.
20.That each parent shall inform the other parent immediately in the case of an emergency or hospitalisation or serious injury/illness in relation to the child.
Travel and Passport Arrangements
21.That the child be permitted to travel between New Zealand and Australia to spend time with the father pursuant to these Orders.
22.Pursuant to Section 11(1)(b)(i) of the Australian Passports Act 2005 (Cth), the child [X] born […] 2015 is permitted to have an Australian travel document.
23.In the event the child’s passport requires renewal, the Father and the Mother must execute and return to the other parent the relevant Application Form within fourteen (14) days of their receipt of the Application Form from the other parent.
24.That the child’s passport shall be held by the mother – unless the child is travelling without the mother.
Counselling and other programs
25.That within twenty-eight (28) days the mother shall arrange for a referral and thereafter attend upon, within no later than 2 months (subject to availability) a consultant psychiatrist.
26.That the mother be permitted pursuant to section 121 of the Family Law Act 1975 to provide to her general practitioner and the consultant psychiatrist:
a. The Affidavit of [Dr T] filed 7 January 2021;
b. The Reasons for Judgment dated 16 December 2021;
c. A copy of these Orders.
27.That the mother attend upon the consultant psychiatrist for so long as the consultant psychiatrist deems necessary to address the concerns noted by [Dr T].
28.That within twenty-eight (28) days the father shall enrol in an anger management program and parenting orders program and thereafter complete such programs within six (6) months.
29.That the father be permitted, pursuant to section 121 of the Family Law Act 1975 to provide to any program provider, as required:
a. The Reasons for Judgment dated 16 December 2021;
b. A copy of these Orders.
Discharge of the Independent Children’s Lawyer
30.That the Independent Children’s Lawyer be discharged after the expiration of any appeal period.
IT IS FURTHER NOTED:
F.Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in “Parenting Orders – obligations, consequences and who can help” and these particulars are included in these Orders.”
The father filed a Notice of Appeal on 21 February 2022. On the same day, the father filed an application seeking a stay of certain orders made on 15 February 2022. The application seeks the following orders:-
“1. That this Application in a Case be heard on an urgent basis.
2. That all times for service be abridged.
3. Orders 1-14, 21-30 of 15 February 2022 be wholly stayed until the appeal has been decided.
4. That the orders of 8 July 2020 remain in force until the appeal has been decided.”
The granting of a stay is discretionary. In Trahn & Long (No.2) [2008] FamCAFC 194 (“Trahn & Long No.2”) the Full Court (Warnick, Boland and Dessau JJ) summarised the applicable principles which a trial judge is to apply when determining a stay application (similar considerations were referred to by the Full Court in Aldridge & Keaton(Stay Appeal) [2009] FamCAFC 106). At [38] of Trahn & Long (No.2), the Full Court stated:
“[38] These principles, both in the general law and in respect of parenting proceedings, are well settled (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Ltd (1986) 160 CLR 220 at 230; Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685. Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; Clemett and 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 included the following:
(a) 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 "special" or "exceptional" circumstances;
(b) a person who has obtained a judgment is entitled to the benefit of that judgment;
(c) the person who has obtained a judgment is entitled to presume the judgment is correct;
(d) the mere filing of an appeal is insufficient to ground a stay;
(e) the bona fides of the applicant;
(f) 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;
(g) 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 the stay;
(h) some preliminary assessment of the strength of the proposed appeal — whether the appellant has an arguable case;
(i) the desirability of limiting the frequency of any change in a child's living arrangements;
(j) the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of a stay for a short period of time; and
(k) the best interests of the child the subject of the proceedings.”
(The noting of the above points of principle have been described as (a) through to (k) by this Court.)
THE PRINCIPLES FROM TRAHN & LONG (NO.2)
Principle (a)
I note that the onus is (of course) on the applicant to establish a proper basis for the granting of a stay. The applicant does not need to demonstrate “special” or “exceptional” circumstances. In this case, the onus rests with the applicant father.
Principles (b) and (c)
The mother (the respondent to this application for a stay) is the person who has obtained a judgment (the primary judgment) in her favour and she is entitled to the benefit of the judgment. Further, the mother is entitled to presume that the judgment is correct.
Principle (d)
The fact that the father has filed a Notice of Appeal is not a sufficient reason to order a stay.
Principle (e)
The next matter for the Court to consider is the bona fides of the applicant father. The Court made a large number of credit based findings against the father and these findings are apparent in the reasons for judgment. Notwithstanding the large number of findings against the father – I do not, for present purposes, question the father’s bona fides in bringing this stay application or in respect of his appeal against the Orders of 15 February 2022.
Principle (f)
I have considered principle (f). There is nothing in particular that needs to be stated in relation to this consideration. The matters contained therein do not, in the particular circumstances of this case, require separate discussion.
Principle (g)
The next matter to consider is whether or not the father’s appeal of the substantive proceedings would be rendered nugatory if a stay is not granted. Of particular note is the fact that the Full Court in Trahn & Long (No.2) stated that this would be, “a substantial factor” in the determination of the application for a stay. In the primary judge’s decision in the stay application in Trahn & Long [2008] FamCA 922 – Coleman J went so far as to state (in paragraph 8):-
“8….the primary consideration is whether the refusal of the stay would render nugatory the fruits of a successful appeal…”
Coleman J’s view was that this aspect was “the primary consideration”. The Full Court did not criticise his Honour in relation to the use of those words. I will work on the basis that the words used by the Full Court provide the appropriate formulation – namely that the question of whether or not an appeal would be rendered nugatory will be a “substantial factor” in determining this application. I have come to the conclusion that the appeal in the current case before the Court would not be rendered nugatory if the stay is refused. The father lives in Location C in Queensland with the subject child X (born … 2015). The mother lives in New Zealand with her older daughter Y (born … 2009). The child, Y travels to Australia during school holiday periods to have holiday time with her father, Mr B. The mother has facilitated this arrangement and it has worked well for the child, Y. The mother’s willingness and ability to facilitate the relationship between Y (living in New Zealand) and Y’s father (living in Australia) was one of the reasons that the Court concluded that the child should live with the mother in New Zealand. That is, the Court concluded that the mother will facilitate X’s time with his father in Australia (note paragraph 170 of the reasons for judgment). There is no evidence before the Court to suggest that the mother is a flight risk – in the sense that she has no intention of leaving New Zealand. This is important as will become apparent shortly. The mother was born in New Zealand. The mother is well settled in New Zealand with her new partner and with the child Y.
There are a number of decisions involving stay applications brought in circumstances where there has been permission for an international relocation.
In Cape v Cape (2013) FLC 93-549 (“Cape v Cape”) – the Full Court (Finn, Thackray and Aldridge JJ) – essentially, confirmed the correctness of a trial judge’s dismissal of a stay application in respect of an international relocation. The Full Court did vary the orders made by the trial judge. To do this, the Full Court had to “allow” the appeal – but the variation made by the Full Court still permitted the mother to leave Australia with the child and travel to live in Germany. The Full Court required that the mother obtain recognition from a Court in Germany pursuant to the so-called “Child Protection Convention”[1] – of the orders that had been made by the Family Court of Western Australia and the orders made by the Full Court. The mother was also required to obtain a declaration from the German Court of “enforceability in Germany” of the orders made by the Courts in Australia.[2] Furthermore, the Full Court required that the mother register in the Court in Germany the orders made by the Australian Courts. New Zealand is not a signatory to this Convention. However, it is possible to register an order of an Australian Court in New Zealand. Pursuant to Regulation 24 of the Family Law Regulations 1984 (Cth) – this Court is able to transmit its own orders to a New Zealand Court for registration upon request.
[1] Article 24 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.
[2] Article 26 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.
I also note the relevant New Zealand legislation. I note ss 81 and 82 of the Care of Children Act 2004 (NZ). Section 82 states:-
“82 Effect of registration
(1) If an overseas parenting order is registered in a court under section 81, then, so long as the registration is not cancelled, the order may be enforced, varied, or discharged as if it were an order made by that court under this Act.
(2) This section is subject to sections 83 and 85(1).”
In the Care of Children Act 2004 (NZ), there is a definition of an “overseas parenting order”. It refers to orders of a Court in a “prescribed overseas country”. A “prescribed overseas country” is defined to mean (or include) Australia.
I have concluded (for the reasons stated) that the mother is not likely to leave New Zealand. It seems to me that in light of the decision in Cape v Cape, the prudent approach is to have the relevant orders of this Court registered in New Zealand.
In the event of a successful appeal – the father will have the benefit of the orders registered in New Zealand.
Given that the orders can be registered in New Zealand there is no reason to expect that the appeal will be rendered nugatory if the stay application is dismissed. I have had close regard to the submissions made at the hearing of this application on 2 March 2022. I do not agree that the appeal will be rendered nugatory in this case if the stay is refused.
Counsel for the father relied on EJK v TSL (No.2) (2006) 35 Fam LR 590 (“EJK”). That case is quite different to the current case. In EJK there had been no best interests determination. There had been no trial on the merits. More importantly, the appeal against the refusal of the stay was allowed because the father’s undertaking given to the Family Court of Australia (that he would return the child to Australia in the event that the mother’s litigation/appeal in Australia was successful) was not enforceable in a Court in Korea at the suit of the mother. Here, the Orders of this Court can be registered in New Zealand (as noted) and can be enforced in New Zealand at the suit of the father – in the event of a successful appeal.
Principle (h)
As can be seen at [38] of Trahn v Long No.2, the next matter for consideration is a preliminary assessment by this Court of the strength of the father’s proposed appeal. The Full Court described this assessment as a consideration as to whether the father has an arguable case on appeal. That requires some assessment of each of the 10 stated grounds of appeal. It is important to note that this principle is still only one matter for this Court to consider in this application. The grounds of appeal contained in the Notice of Appeal filed 21 February 2022 are as follows:-
“1. The learned Judge failed to give adequate Reasons and in particular failed to give adequate consideration of any of the Section 60CC factors, or Section 65DAA or Section 61DA before making a determination and his failure to do so is an error of law.
2. The learned Judge made premature determinations without consideration of any of the relevant legislative pathway, or for that matter any of the other evidence in the matter at paragraph 25 of the Reasons and his predetermination is an error of law.
3. The learned Judge’s focus in his reasons on historical family violence and the corresponding findings made in relation to that topic meant that the learned Judge failed to engage with the other evidence and caused his discretion to miscarry.
4. The learned Judge's finding at paragraph 18 of the Reasons is unsupported by any other finding in the Reasons as to what risk is posed by the child remaining in the care of the Appellant and the learned Judge gave either no or insufficient Reasons to support the finding at paragraph 18 of the Reasons. His failure to do so is an error of law.
5. The learned Judge's finding at paragraph 138 of the Reasons that the Appellant had not changed his manner or living' as it was described by the learned Judge is unsupported on any other evidence in the matter.
6. The learned Judge failed to consider, weigh and assess any risk posed to the child in living with the Appellant, in light of the other findings he made and his failure to consider, weigh and assess the risk is both against the case authority and an error of law.
7. The learned Judge's finding at paragraph 105 of the Reasons that one of the most important aspects underpinning the opinion of the Family Report writer was that the Father had demonstrated an openness to change is internally inconsistent with paragraph 134 of the Reasons and is inconsistent with the other evidence of [Ms D]. The finding is wrong in fact and caused the learned Judge's discretion to miscarry.
8. The learned Judge failed to give any consideration, whatsoever, to the effect on the child's relationship with the Appellant when the evidence was the child had lived with the Appellant since June 2018 and in doing so failed to give any consideration to either Section 60CC (3) (b) or Section 60CC (d) and his failure to do so is an error of law.
9. The learned Judge's application of the case of Banks v Banks (2015) FLC 93-637 is wrong at law.
10. The Reasons are otherwise inadequate and insufficient.”
Grounds 1 and 2
The first and second grounds of appeal should be dealt with together. At the hearing of the application on 2 March 2022, counsel for the mother dealt with grounds 1 and 2 together.
The complaint made by the father in grounds 1 and 2 is to the effect that the Court made premature determinations. Particular reference is made to paragraph 25 of the reasons for judgment. Paragraph 25 of the reasons for judgment states:-
“25. I have referred earlier to the decision in Banks. There is a reference there to situations where the evidence “leads inexorably to a particular conclusion”. Given the extent of the evidence concerning family violence in this case and the central findings that will be made in these reasons for judgment – my view is that the weight of that evidence does lead to a particular conclusion – namely that the child should be living with the mother in New Zealand. I am aware that the family report writer refers to certain reasons why the child ought to remain with the father – but I have considered these aspects in detail later in these reasons for judgment. For present purposes it is important for the Court – in a somewhat chronological way – to refer to the evidence of family violence. I reject the father’s testimony that he did not “frequently threaten [Ms Jennings] with violence” (father’s trial affidavit, paragraph 100). I begin my consideration of the evidence of family violence in the case by noting that I accept the following evidence from the mother:-
(a) Shortly after the parties moved in together in April 2012 the father held the mother down on the bed to stop her getting up to go to attend to young [Y] who was crying at the time (at night). [Y] was aged 3 at the time. The father did eventually let the mother go to attend to the child (mother’s trial affidavit, paragraph 44) (note s 60CC(3)(j)); and
(b) Within the first two months that the parents were living together the father had sat the mother down on two occasions to explain to her all of the things that she was doing wrong (mother’s trial affidavit, paragraph 45).”
Paragraph 25 is in the nature of an introductory paragraph. It appears relatively early on in the judgment – at page 5 of the 51 page judgment. The reader is informed that the Court has considered the evidence – including the extensive evidence of family violence and the evidence of the family report writer. The reader is informed that the Court’s consideration of the evidence has led to the making of certain central findings. Those central findings have led the Court to conclude that the best interests of the child are served by living with the mother in New Zealand.
Paragraph 25 is one of those paragraphs which gives litigants an overview at the start – so they are not on tenterhooks for 51 pages. An attempt to characterise paragraph 25 as evidence as predetermination is erroneous. The paragraph itself makes it clear that the conclusion referred to (in paragraph 25 itself) has only been made after a consideration of the evidence and the making of the findings of fact.
I note what the Full Court had to say in Cox v Pedrana (2013) 48 Fam LR 65 (“Cox v Pedrana”).
Despite the fact that Cox v Pedrana is in fact referred to in the reasons for judgment (paragraph 24) – none of the parties made reference to this decision in the hearing of the application for a stay. I note that at [29] in Cox v Pedrana (one of the paragraphs specifically mentioned in paragraph 24 of the reasons), the Full Court stated, inter alia:-
“…A trial judge is entitled, for example, to state at the outset the ultimate conclusion which he or she has reached provided the reasons thereafter reveal the process by which that conclusion is reached and provided that, in doing so, the Act’s mandatory dictates have been observed as the Act demands.”
Paragraph 25 is the kind of paragraph referred to the above quotation from Cox v Pedrana.
Further, the Full Court also said (at [31) in Cox v Pedrana:
“While reference to a “legislative pathway” is, of course, an accurate descriptor of what individual sections within Pt VII of the Act require when taken together, care must be taken to not permit arguments about form to take precedence over the substance of what Pt VII requires…”
To reiterate – “care must be taken to not permit arguments about form to take precedence over the substance of what Pt VII requires.”
Counsel for the father relied upon a decision of the Full Court entitled Panneton & Delauder [2021] FamCAFC 102 (“Panneton”). I am familiar with this decision. Paragraph 25 of the reasons for judgment under consideration bears no resemblance to the situation complained of in Panneton. The primary judge’s paragraph 144 in Panneton bears no resemblance to paragraph 25 in the reasons for judgment currently under consideration. To reiterate – a trial judge is entitled “to state out the outset the ultimate conclusion which he or she has reached…”
Ground 3
This is a complaint that the Court focused on the evidence of historical family violence. It is said that the Court failed to engage with other evidence, hence causing the discretion to miscarry. It appears to be a complaint about weight. Arguments concerning weight are notoriously difficult to succeed with on appeal from a discretionary judgment. The argument pressed on behalf of the father seems to downplay ss 60CC(2)(b) and 60CC(2A) of the Family Law Act 1975 (Cth) (“the Act”).
The Court is required by the Parliament to give greater weight to the consideration in s 60CC(2)(b) relating to the need to protect children from family violence etc. – ahead of the other primary consideration in s 60CC(2)(a) relating to the benefits to the child of having a meaningful relationship with both parents. Not that there is any suggestion that the child would not continue to have a meaningful relationship with the father. At the hearing of the application on 2 March 2022, very few submissions were made in relation to ground 3.
The reasons show that family violence was so extensive that it required a significant amount of time to be devoted to it in the reasons for judgment. A significant amount of time during the trial was devoted to evidence (including by way of cross-examination) of the family violence perpetrated by the father and to whether or not the father had actually gained insight into the destructive effects his violent conduct had on the family. The father claimed that he had gained insight from some of his actions. The Court was not convinced and made a credit findings against the father. Depending on the facts of a particular case – different considerations contained in s 60CC assume greater or less prominence. In a case involving the residence of a 15 year old child, s 60CC(3)(a) (the wishes of a child) will be given very significant weight. This is not so with young children. In the instant case, because of the particular facts, the Court determined that very significant weight needed to be given to ss 60CC(2)(b) and 60CC(2A) and ss 60CC(j) and (k). This approach accords with authorities including Collu v Rinaldo [2010] FamCAFC 53.
Grounds 4 and 6
Counsel for the father made submissions in relation to grounds 4 and 6 grouped together. Those grounds are linked and, to some extent, ground 8 is also linked. Most of the submissions made by counsel for the father at the hearing of the stay application related to grounds 4 and 6. That is why I have devoted more time to a consideration of those grounds in these reasons.
Dealing with grounds 4 and 6 – counsel for the father highlighted paragraph 18 of the reasons for judgment:-
“18. I note that the family report writer is of the view that the move to live with the mother in New Zealand would be “hugely disruptive” for [X]. That may be so, but in weighing the various considerations (which will be referred to here in these reasons for judgment), the Court has come to the conclusion that such a disruption is in the best interests of the child. The Court is far from satisfied that this father has “demonstrated an openness to change” as referred to by the family report writer. In those circumstances the risk to the child remaining in the primary care of the father in Australia outweighs any disruption that may be experienced by the child moving to New Zealand to live with his mother and his sister.”
I note, to start with, there is a definite reference to the subject matter of s 60CC(3)(d). In particular, the disruption to the child’s life with the father in Australia.
In oral submissions to the Court on 2 March 2022, counsel for the father submitted that the reasons for judgment do not articulate what the risk to the child is of remaining primarily in the care of the father. The complaint is, essentially, a complaint that the Court provided insufficient reasons to support the finding referred to in paragraph 18. Furthermore, the complaint referred to in ground 6 was that the Court should have provided a more detailed assessment relating to the question of the risk of remaining in the care of the father.
Counsel for the Independent Children’s Lawyer supported the father’s counsel’s submissions concerning these grounds.
At the hearing on 2 March 2022, the Court drew the attention of counsel to paragraph 128 of the reasons. Neither counsel had addressed the Court in relation to that paragraph. The risk to the child in remaining in the father’s care was referred to in paragraph 128. This paragraph is also linked to paragraph 107 of the reasons. Before I refer to other relevant paragraphs from the reasons for judgment (relating to these grounds), it is helpful to consider some of the authorities when it comes to the question of adequacy of reasons. I note what was said by Coleman J in Wen v Thom [2010] FamCAFC 81:-
“[57] As the authorities make clear, there is no absolute standard by which the adequacy of judicial reasons can be gauged. The authorities suggest that the essential requirement is that judicial reasons reveal why a case was decided the way it was. How much needs to be said for that requirement to be met will vary from case to case in the light of the issues raised which require adjudication. In many cases, very little will need to be said whilst in other cases a good deal of the reasoning process which leads to the ultimate decision will need to be revealed”
Further, I note what was said by Kirby J in AMS v AIF (1999) 199 CLR 160 at 211. At page 211, his Honour stated, inter-alia:-
“…an appellate court, invited to review the exercise of discretion at first instance will 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. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial.”
(Footnote omitted)
In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (“Soulemezis”) [259], Kirby P noted that a trial judge is not required to provide, “a minute explanation of every step in the reasoning process that leads to the judge’s conclusion.”
That observation by Kirby P (as his Honour then was) in Soulemezis was cited more recently by the High Court in DL v The Queen (2018) 266 CLR 1, where the majority (Kiefel CJ, Keane and Edelman JJ) stated at [33], inter-alia:-
“…reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake “a minute explanation of every step in the reasoning process that leads to the judge’s conclusion”.”
(Emphasis added) (Footnote omitted)
Soulemezis was also cited with approval by the Full Court of the Family Court of Australia in Bennett & Bennett (1990) 102 FLR 370 (“Bennett”) at page 389.
Furthermore, at page 390 of the decision in Bennett, the Court stated, in relation to reasons, inter-alia:-
“In general, the appellate Court should be able to discern either expressly or by implication the path by which the result has been reached.”
(Emphasis added)
As previously mentioned, at the hearing on 2 March 2022 counsel for the father and the Independent Children’s Lawyer referred only to paragraph 18 of the reasons for judgment. The Court referred the parties to paragraph 128. A more detailed analysis of the reasons for judgment reveals that the process of reasoning is in fact set out in many other paragraphs in the judgment. Neither counsel referred the Court to any of these paragraphs.
On a close reading of the reasons for judgment it is apparent that the Court’s process of reasoning – which led to the conclusion that the child is at risk if he remains in the primary care of the father – can be seen in paragraphs 106, 107, 109, 110, 126, 128, 136, 139, 141 and 150 of the reasons for judgment.
It is crucial to note paragraph 141. Paragraph 141 of the reasons for judgment states:-
“141. The main thrust of the opinion of the family report writer was that removing the child from Australia and sending him to live with his mother (and his sister) in New Zealand was altogether too disruptive and that the child “barely knows his mother”. The conclusion I have reached is that the Court needs to weigh that level of disruption to the child with the obvious risks to the child in remaining in the care of the father (note s 60CC(3)(d)). To put it another way – to remain in the care of a person whom the Court has concluded has gained no insight – or limited and insufficient insight – into the effect of his actions and the manner in which he lived his life when the parties were together in Australia.”
(Emphasis added)
Here, the Court has weighed the risks. The risk to the child of disruption caused by moving to New Zealand – as opposed to the risk to the child of remaining in the primary care of the father. The pathway of reasoning is apparent. The Court in paragraph 141 clearly articulated the risk to the child in remaining the primary care of the father. As was pointed out in Bennett (again at page 390) a process of reasoning can be provided in relatively short compass. The specific risk to the child remaining in the primary care of the father has been expressly stated by the Court when the Court said:-
“To put it another way – to remain in the care of a person whom the Court has concluded has gained no insight – or limited and insufficient insight – into the effect of his actions and the manner in which he lived his life when the parties were together in Australia.”
(Emphasis added)
The process of reasoning concerning the risk to the child of remaining in the primary care of the father is again explained in paragraph 150 of the reasons for judgment. In that paragraph, the Court stated:-
“150. As long ago as 2003, the Court has evidence of the father’s violent propensity. In this trial, the father sought to minimise or diminish his responsibility in respect of the 2003 offence. The evidence concerning the father’s history of family violence (dating as it does from 2003) – combined with the extensive evidence of family violence perpetrated by the father over a seven-year period between 2011 and 2018 (namely during the course of the relationship with the mother) are further factors that weigh in favour of the Court concluding that the risk of disruption to the child in moving to live with the mother in New Zealand is outweighed by the risk of the child growing up in the household of the father. There are obvious risks to the child in growing up in such an environment with a person as his primary carer (the father) – noting the findings made by the Court concerning the father.”
(Emphasis added)
The pathway of reasoning is stated. The risks to the child in living primarily with the father and growing up with the father are stated to be “obvious risks” to the child – “noting the findings made by the Court concerning the father”. The Court in paragraph 150 expressly pointed out that the risks to the child are evidenced by and linked to the Court’s adverse findings concerning the father. To put it another way, the risks to the child in remaining in the care of the father are apparent from the findings made by the Court.
The reference in paragraph 150 (and, indeed in paragraph 136) of the judgment to the findings made by the Court include (of course) findings that do relate to the fact that the father perpetrated family violence directly towards the children – including the child X and the child Y. Family violence was also perpetrated by the father against the mother in the presence of the children. Those findings (referred to in paragraphs 150 and 136 and elsewhere) are found in the judgment at many paragraphs including paragraphs 16, 30, 36, 37, 42, 43, 44, 45, 46, 47, 48, 49, 50, 52, 53, 55, 56, 57, 58, 59, 60, 61, 66, 67, 68, 69, 76, 77, 78, 100, 107 and 167. These findings show that the father resorts to violence when he does not get his own way; these findings reveal that the father involved the children (including X) in and exposed the children to his violent and controlling conduct (note especially paragraphs 48, 57, 60 and100); these findings reveal that the Court was not convinced that the father had gained sufficient insight into the effects of his conduct on the family; and these findings reveal that the Court was not convinced that the father had demonstrated an openness to change (note especially paragraph 49).
Reference was made by counsel for the father to certain case authorities. The cases referred to included M v M (1988) 166 CLR 69 and In the Marriage of N and S (1995) 19 Fam LR 837. Those cases involved allegations of child sexual abuse. The reference to such authorities is likely to be misleading in the particular circumstances of this case. In a case where there are allegations of child sexual abuse, the Court is always at a significant disadvantage in trying to ascertain what did or did not occur. Most often, there is an infant who has made some sort of a disclosure – and the only other person present when the alleged sexual abuse occurred is an adult. Those cases are notoriously difficult. The same goes for a another decision referred to by counsel in Harridge v Harridge [2010] FamCA 445 (“Harridge”) – a case involving a father who had been convicted of child pornography offences and the matter for consideration related to whether or not a person who had been guilty of a non-contact sexual offence was likely to engage in a contact sexual offence. The cases cited bear little resemblance to the facts in this case currently before the Court. In this case, the Court has stated what occurred. The father made admissions in relation to some of the family violence. But the Court has made much more extensive findings against the father concerning family violence. The Court also found that the father has not gained (any or any sufficient) insight into the effect of his violent conduct and that he has sought to downplay aspects of his violence and further that the father has not in fact demonstrated an openness to change. These findings result from adverse credit findings against the father. In Harridge (for instance) if the Court had concluded that the father had not gained insight into his previous conduct and if the Court had concluded that the father had not demonstrated an openness to change – the question of the existence of a risk would have become much more straightforward. In the current case – neither party ran an argument that there was unacceptable risk. The only argument was – where did the best interests of X lie in relation to his primary care. It is clear from the argument pressed by the mother at the trial and from the findings made by the Court that the risk to the child from the father was sufficiently ameliorated by an order that the child live in the primary care of the mother. That was the case run by the mother. That was the conclusion made by the Court – at the very least by obvious implication.
As I note, the findings relating to family violence in this case are conclusive. There is no guesswork involved. Academic argument relating to what “might” have happened and hence what risk “might” exist are not required in this case. As I have just noted in these reasons for judgment – in the primary reasons for judgment there are numerous paragraphs (virtually none of which were referred to by counsel at the hearing of the application) whereby it is possible to discern the process of reasoning. It is also important point out that the Full Court in Bennett referred not just to discernment of the pathway by express words used in a judgment – the path of reasoning can also be discerned by implication. It is apparent for instance from the reasons for judgment, that the risk to the child relates to the child living primarily in the care of the father. The Court’s further conclusion, which is apparent, at the very least, by implication, is that the risk will be sufficiently ameliorated by the child living primarily with the mother and spending holiday time with the father.
Ground 5
Reference is made in ground 5 to paragraph 138 of the reasons. There was very little actually said by way of submissions concerning ground 5 on the hearing of this stay application.
Paragraph 138 of the reasons for judgment states:-
“138. I have had regard to the written submissions provided to the Court by the parties. The father’s argument seems to be that the father has admitted that he perpetrated family violence – therefore the risk to the child living primarily in the father’s household disappears. I reject that contention. It is one thing to admit that he engaged in certain conduct (family violence). It is another matter altogether to convince the Court that he has actually gained insight in relation to his conduct and changed his views, outlook and manner of living to such an extent that the Court would consider that the risk to the child in growing up in such a household (with the father) is diminished to the point that the Court would conclude that it is in the child’s best interests to remain living with the father in Australia.”
Ground 5 seems only to relate to one aspect of this paragraph. It is apparent from the reasons that the father failed to convince the Court that he had gained insight in relation to his conduct. The father’s lack of insight was referred to at length in the reasons for judgment. There was a large amount of evidence referred to in the reasons to support the finding that the father had failed to “convince the Court that he had actually gained insight in relation to his conduct and changed his views, outlook and manner of living…”. The finding was that the father had failed to convince the Court of these matters. This central finding was based on the Court’s credibility based assessment of the father. Such findings are only able to be overturned on appeal in very limited circumstances. In Devries v Australian National Railways Commission (1993) 177 CLR 472 (“Devries”), the High Court (Brennan, Gaudron and McHugh JJ) stated at page 479, inter alia:-
“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against – that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his advantage" or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable."”
(Footnotes omitted) (Emphasis added)
This is a significant hurdle for the father to overcome.
Indeed, the reasons for judgment are replete with findings based on adverse credit assessments by the Court in relation to the father.
Ground 7
Ground 7 is a complaint of apparent inconsistency between paragraphs 105 and 134 of the reasons.
At the hearing of the application for a stay, basically no submissions were made in respect of this ground. The two paragraphs state:-
“105. The family report writer gave her opinion (when being questioned by Mr Dodd on behalf of the Independent Children’s Lawyer) that her recommendation from the family report remained unchanged – namely the child should remain living with the father. As indicated earlier in these reasons, it is apparent to me that one of the most important aspects underpinning the opinion of the family report writer is her impression that “the father has demonstrated an openness to change”. As I have indicated that impression is simply wrong.
…
134. The evidence from the family report writer in the Transcript 18 June 2021, p.363, included her statement that she was recommending that the child remained living with the father not on the basis that there was a risk of old abusive violent behaviour re-occurring – “It was on the principle that he now barely knows his mother.”
In the absence of detailed submissions it is difficult to understand the complaint made in Ground 7.
In paragraph 105 it was open to the Court to conclude that, in regards the family report – it was apparent to the Court that one of the most important aspects which underpinned the family report was her impression that the father had “demonstrated an openness to change”. That was a finding made by the Court having regard to the Court’s consideration of the family report and the evidence of the family report writer.
Paragraph 134 merely recites evidence from the family report writer. It is not a finding by the Court. The issue of whether X “knows his mother” was addressed in some detail in the reasons for judgment.
Ground 8
Ground 8 maintains that the Court has not given any consideration to section 60CC(3)(b) or s 60CC(3)(d) – particularly in relation to the effect of the child's relationship with the father. This is not correct. The Court specifically referred to and discussed in the judgment the fact that the father is currently the primary attachment figure for the child. That evidence had to be weighed with all the other evidence. Furthermore, the child’s relationship with the father is referred to in paragraph 18. This is a consideration referrable to s 60CC(3)(d). The disruption to the child's current living arrangements – namely, his life with the father and his relationship with the father are referred to there. I also note paragraph 25 of the reasons contains, essentially, a reference to the matters in ss 60CC(3)(b) and (d). Section 60CC(3)(d) is specifically referred to in paragraph 141 of the judgment. There are other parts of the judgment that deal with the considerations referenced in ss 60CC(3)(b) and (d) – relating to the father and to other persons – for instance, paragraph 136. It is not correct to say that the Court failed to give any consideration to these aspects.
Ground 9
There was no detailed submission made at the hearing of the application in relation to the decision of Banks v Banks (2015) FLC 93-637. In any event – notwithstanding the comment in the judgment of an inexorable conclusion – the Court referred to the relevant s 60CC consideration.
Ground 10
Ground 10 was not in any way particularised.
Conclusion in relation to this consideration
Some of the grounds of appeal are arguable. In conducting a preliminary assessment of the strength of the appeal – it is important to note again that this is only one of the aspects for the Court to take into account when deciding whether or not to grant a stay. It needs to be reiterated that there are two significant problems for the father in prosecuting the appeal in this matter – namely, the fact that the judgment rests on many adverse findings of credit against the father which (as noted in the High Court’s decision in Devries) are notoriously difficult to overcome on appeal. They are the central findings in the case. Furthermore, there is no appeal against the Court's rejection of the ultimate opinion of the family report writer.
I have formed an impression that the appeal is less than likely to succeed.
Principle (i)
This consideration relates to the desirability of limiting the frequency of any big change in the child's living arrangement. Obviously that is desirable. But it is only one factor for the Court to take into account at this stage. It has to be weighed with all the other factors. The Court has concluded a trial on the merits. The child is young. There is no suggestion that the child would not adapt to a move to New Zealand – or indeed a return to Australia (if that became necessary). It may be disruptive (if there were to be a successful appeal) but there would also likely be benefits – such as this young child spending time with the mother and his sister. I am confident that schooling issues can be managed by the parents.
Principle (j)
It is said that the appeal can be heard in July 2022. That is still some four months away. One would expect a judgment within three months of that date. A seven month delay (at least) is still a considerable period of time to deny the mother the fruits of the judgment – having regard to the matters referred to in these reasons.
Principle (k)
Some of my comments here may also relate to principle (i). I have considered that the current day-to-day living arrangements for the child (with the father in Location C) appear to be satisfactory. That alone is not a reason to grant a stay. This is especially so in view of the findings contained in the reasons for judgment. I have also considered the limited time that the mother has spent with the child since separation. The reasons for that are contained in the judgment.
The best interests of the child have been recently decided by the Court after an exhaustive process of trial. The Court concluded that the child's best interests are served in are him moving to New Zealand now with the mother.
I note the findings made by the Court that the child does indeed know his mother. The child has been communicating secretly with the mother. These are findings that were open to the Court and they were made by the Court and referred to in the reasons for judgment. The mother's affidavit filed for the hearing of this application makes it clear that she recently had a telephone discussion with X. There is obviously a great sense of familiarity. The child is spending Friday overnight this week with the mother pursuant to a Court order (made with the consent of the parties) on 2 March 2022. A move to New Zealand will also mean (as noted the judgment) that the child will get to spend time with (and, indeed, grow up with) his sister Y.
CONCLUSION
Taking all of the relevant matters into consideration – including in particular, all those matters identified in Trahn v Long (No.2) – the conclusion I have reached is that the application for a stay should be dismissed. A significant problem for the father is that the Court made certain central findings including – that the father has not gained any sufficient insight into his violent conduct and that the father has not demonstrated an openness to change and these findings led the Court to find that the child would be at risk if he remained in the primary care of the father. Those central findings are credit based assessments. I note again what the High Court had to say in Devries concerning such assessments.
Further, the Court has concluded here that a refusal of the stay would not render a successful appeal nugatory. This is a substantial factor in the considerations leading to the decision to refuse the stay (Trahn & Long (No.2))
I will hear submissions as to the wording of the Orders to be registered in New Zealand.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 7 March 2022
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