Johnson and Field (No. 2)

[2008] FamCA 851

FAMILY COURT OF AUSTRALIA

JOHNSON & FIELD (NO. 2) [2008] FamCA 851

FAMILY LAW – ORDERS – Application for stay

APPLICANT: Ms Field

RESPONDENT: Mr Johnson

INDEPENDENT CHILDREN’S LAWYER: Mrs K. O’Rourke

FILE NUMBER: NCF 3468 of 2000

DATE DELIVERED: 26 August 2008

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: JUSTICE MULLANE

HEARING DATE: 11 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr G Kenny

SOLICITOR FOR THE APPLICANT: Mr Fryatt, Stacks, Solicitors

THE RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs K O’Rourke, Legal Aid Commission of NSW

Orders

1. Orders 4 and 9.7 of 2 July 2008 are stayed pending the determination of the mother’s Appeal filed on 28 July 2008 on the condition that the mother spend no time with the child other than provided in Order 3 of 25 July 2008 unless it is defined by an order of this Court.

2. Otherwise the mother’s Application in a Case filed on 29 July 2009 is refused and dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Johnson & Field is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCF 3468 of 2000

MS FIELD

Applicant

And

MR JOHNSON

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This was a hearing of the mother’s application to stay orders as to the time the parties’ daughter spends with her.

BACKGROUND

1. The child is now 10. There was a 5 day hearing in 2006 resulting in Orders of 25 January 2007. The result was that the child, who had previously lived with her mother, lives with her father. There were orders suspending contact by the child with the mother for 2 months, providing then for at least 3 occasions of contact (supervised by a Family Consultant appointed under Section 65L of the Family Law Act to supervise compliance of the parents with the orders) and thereafter, unless the Family Consultant recommended otherwise, the child was to spend 7 hours every second Sunday with the mother for 8 weeks and then, in addition from 10am Sunday to start of school Monday on every other weekend.

2. After the fourth of those overnight stays the Family consultant was to prepare a further family report on the following matters to enable the Court to decide what time with the mother is in the child’s best interests:

   1a history of the time the mother has spent with the child since the making of the orders of January 2007;

   2an analysis of the quality of the time spent by the mother with the child and the benefit to the child of such time;

   3 a consideration of the mother's attitude to the child's relationship with the father;

   4a recommendation as to the arrangements for the mother to spend further time with the child, including alternate weekends, holiday time and communications with the child by way of telephone, cards and letters;

   5 any other matter considered relevant by the Family Consultant.

3. There were also orders for the mother to attend ongoing counselling regarding implementation of the orders, her behaviour towards the child, and her relationship with the child.

4. The following relevant Orders were also made:

   21For a period of 12 months from today the mother is restrained from questioning [the child] or conversing with her about the father, the father’s care of [the child], or events in the father’s household, or permitting anyone else questioning [the child] about such topics.

   22By consent the parties must each comply with the reasonable and lawful directions of the Manager of Children's Dispute Services, Newcastle Registry of the Family Court of Australia and the Family Consultant in regards to their compliance with the parenting arrangements.

   23Pending further order the mother must not contact or approach [the child] at her school except with the written consent of the father and the principal of the school.

   24By consent each of the parties is restrained from discussing proceedings between the parents in the hearing or presence of [the child] or allowing [the child] to view any documents associated with any such proceedings.

   25By consent each of the parties is restrained from denigrating the other party or any member of the other party’s household in the presence or hearing of [the child] or allowing any other person to do so, or permitting [the child] to remain in that person’s presence if such denigration continues, notwithstanding.

   26The Registry Manager is to provide a copy of the Judgment to the office of the Department of Community Services responsible for the [TC] area.

5. On 13 March 2008 interim orders were made by consent for the child to spend time with her mother in each second weekend in school terms, overnight on one occasion, for 4 hours on 3 April, and for 6 days in school holidays in April.

6. After the report was available the parents did not agree on future time she should spend with her mother.

7. The hearing occurred on 23 May 2008.  Judgment was reserved and delivered on 2 July 2008.  The decision was that the child should spend time with her mother each fourth weekend in school terms, 3 days from Boxing Day each year, and 3 days in the last week of each summer vacation, and 3 days in every other school vacation.

8. The mother filed an Appeal on 28 July 2008 and on 29 July filed her Application for a Stay of the orders.  She seeks to have the interim orders of 13 March 2008 continue, which would involve the child spending each second weekend in school terms with her mother.  They contain no provision for ongoing  time in school holidays.

RELEVANT LAW

1. An Appeal against the orders of a Judge of the Family Court does not operate as a stay.  The Court has inherent power to grand a stay of its orders.  Generally, a litigant in a defended final hearing is entitled to the benefit of the  orders concluding the proceedings.  There is an onus on a party who seeks a stay to satisfy the Court that there are circumstances that justify it.  (K and B (2006) FLC 93-288 (Full Court of the Family Court of Australia) at pp80,939-940; Minister for Immigration & Multicultural and Indigenous Affairs and B and B (2003) FLC 93-142 (Full Court of the Family Court of Australia) at 78,372-3; Alexander v Cambridge Credit Corp Ltd (recs apptd) (1985) 2NSWLR 685 NSW Court of Appeal; And Kelly and Kelly (1981) FLC 91-007 (Fogarty J) at 76,104-5.)

2. The relevant matters to be considered in deciding such an application include:

   1)Whether there is a real risk that to deny a stay will render the appeal nugatory or will render it impossible or impractical to restore the situation that existed before the orders (Per Watson J in Carlin and Carlin (1977) FLC 90-320 at 76,696; Per Fogarty J in Kelly and Kelly (1981) FLC 91-007 at 76,105; Scarborough v Lewis junction Stores Pty Ltd 1963) VR 129 at 130).

   2)The merit of the appeal (K and BI (2006) LFC93-288;  Clemett and Clemett (1981) FLC 91-013; and Carlin and Carlin (1977) FLC 90-320).

   3)The bona fides of the appellant, including any delay in filing or prosecuting the appeal or the stay application (K and B (2006) FLC 93-288 at paragraph 24).

   4)Any hardship to the Appellant if a stay is refused or to the other party if it is granted.

   5)The interests of the child. Section 43 of the Family Law Act requires the Court in exercising the jurisdiction under the Family Law Act to have regard to “The need to protect the rights of children and to promote their welfare”. Although in the past it was considered that the interests of the child are paramount in deciding stay applications, since the Full Court decision if VJ and CJ (1997) 22 FamLR166, it is not now. (See also K and B (2006) flc93-288 AT 80,939-940; Minister for Immigration & Multicultural & Indigenous Affairs and B and B (2003) FLC93-142 at 78,373-4;  and CSN v JBN (1998) FLC92-833.)

   6)The likely time by which the appeal will be heard (see CSN v JBN (1998) FLC92-833 (Full Court of the Family Court of Australia)).

3. I will deal with the relevant matters in this application under separate hearings.

THE MOTHER’S BONA FIDES

1. There is no evidence of delay on the part of the mother in relation to the Appeal or the stay application.  On all the material the Court is confident that she intends to prosecute her appeal and believes the orders appealed against are wrong.  Similarly, she appears to believe the orders should be stayed until the Appeal is heard.

HARDSHIP

1. There is no evidence that the mother will suffer financial hardship if a Stay is refused or the father will suffer financial hardship if a Stay is granted.

LIKELY TIME FOR HEARING APPEAL

1. Neither party made any submission on this matter, except that Counsel for the mother invited the Court to make a condition of any stay that the mother complying with any directions of the Full Court and conduct her appeal without any unreasonable delay.  It seems likely that the preparation of the Appeal Index and Appeal Books is likely to take 2-3 months.  The September sittings of the Full Court are already fully listed and it is unlikely that the appeal will be ready in time for inclusion in the Sydney sittings in the week commencing 1 December.  Sitting weeks for the full court for the first half of 2009 have not been allocated, but it seems the appeal is unlikely to be heard before February, about 5- 6 months from now.

STRESS TO THE PARTIES

1. It is clear that the mother is unhappy and stressed at the result of the hearing.  A stay would reduce that stress but not eliminate it, because of the continuing uncertainty until the appeal is decided.  For his part, the father is also stressed by the ongoing litigation and very concerned that the time the mother spends with the child involves emotional abuse of the child.

2. If a stay is granted and the interim orders of March 2008 apply, the child will spend each second weekend in school terms with the mother, although no periods in school vacations.  If the Stay is granted the mother would be able to continue attending the child’s school and seeing her there.  The greater frequency of the child spending time with the mother will result in greater stress for the father from concerns about emotional abuse of the child occurring more often than if the stay is refused.

RISK THAT REFUSAL WILL RENDER APPEAL NUGATORY OR RENDER IT IMPOSSIBLE OR IMPRACTICAL TO RESTORE THE SITUATION

1. If a stay is refused and the appeal is allowed, the Full Court or a single Judge will determine what the appropriate orders should be made in lieu of the orders made.  The appeal will not be rendered nugatory.

2. If the stay is refused and the appeal is allowed, the child will then have whatever time with her mother is considered to be in her best interests.  It will not be impractical or impossible to do that.

MERITS OF THE APPEAL

1. The appeal and the stay application are opposed by the father and the Independent Lawyer for the child.

2. The submissions on this aspect by Counsel departed to some extent from the grounds set out in the Notice of Appeal, so I will list them as argued:

   1)Denial of Natural Justice – “Hurried hearing”.

   It was submitted that the hearing was limited to 2 hours and the hearing was “hurried”.  On 13 March the application was adjourned for a 2 hour hearing on a date to be fixed.  It was listed in the duty list on 23 May.  The hearing time was fixed on 13 March when the father, the Independent Lawyer for the child and the mother’s solicitor appeared.  At the time the second report of Ms X had not been prepared.  At the hearing only the affidavits of the mother and her partner were relied upon. Also, the orders of 25 January 2007 were read, the lengthy reasons for them and the 2 subsequent reports of Ms X.  Only the mother was cross-examined.  The time in the courtroom is recorded on the Court file as a total of about 3 hours and 36 minutes, but that includes the reading time.  According to my notes the time spent in Court was 10.20 to 10.50 am, 12.20pm to 1.00pm (the mother in the witness box), 2.06pm to 2.25pm (the mother in the witness box), and 2.25 to 3.26pm (submissions).  That is a total of 2 hours and 31 minutes in court and the reading time was 65 minutes, giving a total of 3 hours and 36 minutes.

   This ground does not appear to have substance.

   2)       Matters of Weight.

   These include:

   2.1Insufficient weight given to the child’s wishes to live with her mother and to spend more time with her mother.

   2.2Insufficient weight given to the improvement in the mother’s attitudes and conduct since the orders of January 2007.

   2.3 Insufficient weight given to “the emotional trauma” to the child of reducing her time with her mother.

   From December 2007 to the hearing in May 2008 the child, in addition to every second weekend in school terms and a week in the April school vacation (as provided for in the interim orders), also had 2 periods of 7 days each with her mother in the December 2007/January 2008 vacation, which was no pursuant to a court order, but pursuant to agreement with the father.    

   Accordingly, from December 2007 she was with her mother for one week in December, one week in January and 6 days in April in addition to each second weekend in school terms.

   It was agued that the Court gave too much weight to:

   2.4      “The lack of photographs of the father in the mother’s home”;

   2.5      “The fact that the mother gave the child gifts”;

   2.6“The fact that the mother purchased school equipment for the child”;  and,

   2.6“The fact that the mother failed to show open gratitude to the father after the parties agreed on additional time”.

   Because of the wide discretion in parenting proceedings appeal grounds going to matters of weight are notoriously hard to establish, and rarely successful.  It is noted in relation to 2.3 that the Orders provide for counselling for the child to cope with the changes.

   3)Denial of Natural Justice – the child’s time with the mother.

   This ground is that the amount of time ordered “fell outside the parameters of dispute of the parties”, (i.e. is less than the father proposed) and the mother was not warned that such an outcome was being considered and was thus denied an opportunity to address on that.

   The Orders provided less time than the father proposed at the hearing on 23 May.  He proposed one weekend per month plus the first half of school holidays and also special days.  

   But the Family Consultant recommended in the “Recommendations” of her May Report that: “If the Court finds [the child] is suffering unduly from emotional distress of psychological damage as a result of spending fortnightly time with the mother, then it is recommended that this time be limited to once each calendar month whist ever [the child] lives within a 2 hour radius of [T]… and the first half of each vacation if [the child] lives at a farther distance.”

   In her closing submissions Ms O’Rourke for the child, adopted those recommendations.  She submitted that the child was suffering emotional distress and felt that she was living 2 lives, but Ms O’Rourke was undecided as to whether to recommend one weekend per month or one weekend per fortnight.  She proposed counselling for the child if the time ordered was less than already occurring (as recommended by the Family consultant).

   This ground does not appear to have merit.

   4)Denial of Natural Justice – Restraining parties from requesting or permitting the child to have more time with the mother.

   The ground in relation to these orders is that they were made without notice to the mother and she was denied an opportunity to argue against such orders.

   In oral evidence the mother testified that she would consent to an order as part of the outcome of the hearing that she not request of the father any additional time with the child.

   There was no notice given to the mother that the Court might also restrain the father from agreeing to additional time.  Accordingly, as regards that order there is merit in the mother’s appeal.

   Counsel for the mother also submitted that the orders prevent the parties from negotiating to settle the Appeal.

   The purpose of the Orders, as set out in the Judgment, is to prevent the father again agreeing to the child having more time with the mother than is in the child’s interests.  The Order should be stayed but, if the orders for time spent are not stayed, be subject to a condition that there be no additional time except by court order.

   5)Denial of Natural Justice – Times at which the child’s times with the mother start and end.

   This ground is that the Court did not give the mother notice that the particular start and end times ordered were being considered and she had no opportunity to address on that.

   The mother’s proposals for weekend times were for it to start at the end of school Friday “until Monday”, or from Thursday after school “to Tuesday” if Monday is a public holiday.

   The father’s proposal for weekend times were for it to start at end of school Friday and conclude at 5pm Sunday.

   The Family Consultant did not make any recommendation as to times.

   There is merit in this ground and the precise times could be determined on submissions by the Full Court hearing the appeal.  If the parties agreed, it could be determined by a first instance Judge on submissions.

   6)Denial of Natural Justice – Restraining mother from attending the child’s school.

   This ground is that the mother was not given notice that the Court was contemplating making such an order and was denied an opportunity to make submissions.  As recited in the Reasons for the orders of January 2007, neither the Independent Lawyer for the child nor the father proposed at the 2006 hearing any order permitting the mother to attend the child’s school.  However, they did not propose any order preventing her doing so.

   The father proposed an order that the mother attend the child’s school “no more than once a week” and also proposed that what time she is to spend with the child commence at the end of a school day and the mother collect her from her school. 

   However, the recommendations of Ms X were that if the court found that the time the child is spending with her mother involves unacceptable stress for the child then it should be limited.  She offered alternative arrangements depending upon whether the child resides within 2 hours drive of T.  Neither provided for the child to spend any time with her mother at her school.  The Independent Lawyer for the child adopted those recommendations. 

   This ground does not appear to have merit. 

3. These are the grounds raised in submissions by the mother’s Counsel.  It appears the Appeal has merit in relation to the ground of denial of natural justice on the following issues:

   ·    Restraining the father from agreeing to additional times being spent by the child with the mother; and

   ·    Starting and ending times of the child’s time with her mother.

THE CHILD’S INTERESTS

1. The orders involve a change, a reduction in time the child spends with her mother.  It is in circumstances where the child wants to live with her mother or at least spend more time with her.  The change is contrary to her wishes.

2. The submission is that the authorities support such orders being stayed so that unnecessary change is avoided for the child.  It is argued that any such change should be avoided until the appeal hearing as the orders may be set aside.

3. Mr Kenny, counsel for the mother, submitted that, as contemplated by the order for counselling for the child to help her cope with the orders, the new regime includes “pain” for the child and this should be avoided as the Full Court may set the orders aside, leaving the March Interim Orders in place, or substitute other orders providing more time with the mother.

4. In K and B (2006) FLC93-288 the Full Court took the approach that with applications to stay parenting orders the best interests principle is not the paramount consideration, but it is significant.

1. Their honours then distinguished the particularly case from situations where there are satisfactory arrangements for the child before the orders that are sought to be stayed.  They held (at paragraph 31) that distinguishing factors were:

   ·    the trial Judge was determining an application at the end of final defended proceedings where he had heard all the evidence and observed the parties;

   ·    the trial Judge made findings, based on the expert evidence,  that the existing arrangements for the child were not satisfactory, and that structured arrangements for contact with the father should be put into place as soon as possible;

   ·    the father’s evidence about the introductory contact was not subject of any challenge; and

   ·    the orders for contact, although unusual, were ones designed to meet the child’s best interests.

2. Their Honours upheld the decision of the Trial Judge refusing to stay the orders.

3. Similarly, where the situation occurs that a Court has found that a child or adult is being unlawfully detained the interests of the child or adult have been held to be of such weight as to result in a stay being refused.  (Minister for Immigration and Multicultural and indigenous Affairs and B and B (2003) FLC 93-142 (Full Court of Family Court of Australia); and Al Masri v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 1037 (Merkel J)).

4. In the findings of January 2007 the Court decided that the mother’s relationship with the child involved emotional abuse and she should be removed from her mother’s care and live with her father.  There were orders for the child to live with her father, spend no time with her mother for 2 months, have reportable supervised time on four occasions with her mother, then only if the supervisor did not recommend otherwise, there be 8 weeks to which she spent one day per fortnight with her mother, and after that in addition there be one every other week a period from 10am Sunday to start of school Monday.

5. That continued until late 2007.  By then the mother had obtained agreement of the father to additional time and in December 2007 he agreed to every second weekend in school terms and 2 one week periods in the summer vacation.

6. The Interim Orders in March followed that.

7. The findings of the Court are that despite the findings in January 2007 adverse to the mother regarding such conduct, she has used her time with the child to:

   ·    Use the child’s middle name instead of the child’s first name;

   ·    Refer to the father by his Christian name;

   ·    Encourage the child to tell negative stories (mostly inventions) about her father;

   ·    Deny the child reality testing for such stories;

   ·    Be hostile to the father and make unfounded allegations against him;

   ·    Undermine the father’s relationship with the child;

   ·    Undermine the father’s role as the child’s father;

   ·    Be enmeshed with the child and permit the child to feel responsible for the mother’s happiness; and

   ·    Demonstrate to the child disrespect and distrust for the father;

8. She has also:

   ·Refused to speak to the father;

   ·Undermined the Court’s Orders for the child to live with the father;

   ·Undermined the father’s role as the child’s residence parent; and

   ·Encouraged the child to believe the residence order of January 2007 is not final and that when she is 12 if she wants to, she can live with her mother. 

9. Most of these findings are not challenged in the Appeal.  One other finding is that the father has agreed to more time by the child with the mother than is in the child’s interests.

10. The situation prior to the orders of 2 July was not satisfactory in terms of the child’s interests.  She needed to be protected from emotional abuse by the mother.

CONCLUSIONS

Time with the Mother

1. The Appeal on this issue was not shown to have merit and the Stay would be contrary to the child’s interests.  A Stay should be refused.

Restraint on Mother attending the Child’s School

1. Whilst the Appeal on this point is unlikely to succeed.  If it did succeed the Full Court is likely to either hear submissions and rule on this issue or remit it to a single Judge to decide.   Either way it is contrary to the child’s interests that the mother attend her school pending the Appeal hearing as she is likely to use such occasions to subject the child to further emotional abuse.

2. It is likely that there will be 5 to 6 months before the Appeal is heard.

3. This is a situation where the mother’s emotional abuse of the child has been long term and persistent.  The Court should protect the child, just as it would if the abuse were sexual or physical.  The risk to the child is so serious that her interests outweigh the mother’s and a stay of this order should be refused.

Injunctions Restraining Parties from Requesting or Permitting the Child to have more time with the mother

1. There is merit in the ground in relation to the restraint on the father permitting additional time.

2. The child’s interests can be protected if there is a stay or the orders, if the stay is on the condition that there is no additional time unless there is an Order of the Court (whether by consent or not).

Times at which the Child’s Times with the Mother Start/End

1. There is merit in this appeal ground but in the absence of any submissions as to what times the parties and the child’s lawyer prefer, there should be no stay.

Other Orders

1. As regards the other orders, it was not demonstrated that the Appeal ground going to those matters have merit.  A stay of any of orders 5 to 12 would be contrary to the child’s interests.  Order 14 was implemented when the Judgment was released.

2. There is no justification for a Stay of any of the other orders.

____________________
The Hon Justice Mullane

Date:   26 August 2008