Josey and Meibos (No.2)
[2009] FMCAfam 500
•14 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JOSEY & MEIBOS (No.2) | [2009] FMCAfam 500 |
| FAMILY LAW – Stay application for interim parenting orders – application dismissed. |
| Family Law Act 1975 (Cth) s.60CC Family Law Rules (Cth) r.22.12 |
| Josey & Meibos [2009] FMCAfam 470 Champness & Hansen (2008) FamCA 538 Carlin (1977) FLC 93-20 Samson & Hartnett (2007) FamCA 732 In the marriage of Kelly (1981) FLC 91-017 Clement & Clement (1981) FLC 91-013 House & King (1936) 55 CLR 499 Gronow v Gronow (1979) 144 CLR 513 Doherty (1996) FLC 926-52 Goode & Goode [2006] FamCA 1346 |
| Applicant: | MS JOSEY |
| Respondent: | MR MEIBOS |
| File Number: | MLC 2653 of 2009 |
| Judgment of: | O'Sullivan FM |
| Hearing date: | 14 May 2009 |
| Date of Last Submission: | 14 May 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 14 May 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr R.N. Hoult |
| Solicitors for the Applicant: | McBain Lawyers |
| Counsel for the Respondent: | Ms D. Brooker |
| Solicitors for the Respondent: | T J Mulvany & Co |
ORDERS
The mother’s application in a case filed 11 May 2009 be dismissed.
The father’s costs of this day in the amount of $2,785.00 be fixed and the question of costs be reserved to trial.
IT IS NOTED that publication of this judgment under the pseudonym Josey & Meibos is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 2653 of 2009
| MS JOSEY |
Applicant
And
| MR MEIBOS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Introduction
Before the Court today is a stay application filed by Ms Josey (“the mother”). The Respondent is Mr Meibos, (“the father”). Mr Hoult of Counsel appeared on behalf of the mother and Ms Brooker of Counsel appeared for the father.
On 8 May 2009 this Court made interim parenting orders in relation to the parties' two children, [X], born [in] 2002 and [Y] born [in] 2006 (“the children”). Those orders were made after an interim hearing on
5 May 2009 where both parties were represented. At the time the orders were made, the Court delivered extempore reasons for decision and a transcript was ordered and subsequently provided to the parties.[1]
[1] Josey & Meibos (No.1) [2009] FMCAfam 470
Interim orders
The Court made interim parenting orders on 8 May 2009 (“the Orders”) which I incorporate into these reasons. However for the sake of brevity they are set out at the beginning of the reasons for decision referred to earlier and delivered on 8 May 2009.[2] Up and until those orders were made by the Court there had been no parenting orders for the children.
[2] Josey & Meibos (No.1) [2009] FMCAfam 470
In summary, the Orders provided for the parties to re-enrol the children at [P] Primary and [C] Children's Centre. Pending further order, the children were to spend time with the father week about and with the mother at all other times. There were orders dealing with changeover and time on special occasions and by telephone. There were also orders for the preparation of a private family report and psychological report for a further interim hearing. There were orders for a communication book and orders to exchange information in relation to the children, as well as certain restraints on both parties for the children's sake.
The matter was adjourned to a further interim hearing on 14 August 2009 and fixed for a trial on 23 November 2009. On 11 May 2009, the mother made an application for a stay of the Orders.
Stay application
The mother in her application in a case on 11 May 2009 sought the following orders:
“1.That there be an urgent hearing of this Application for a Stay.
2.That the Order of Federal Magistrate O’Sullivan made on
8 May 2009 be stayed pending the determination of the mother’s Application for an Appeal against the decision of the said Federal Magistrate O’Sullivan.”
The application was supported by an affidavit of the mother's solicitor, Robert McBain, sworn 11 May 2009.
By virtue of the operation of the Family Law Rules 2004 (“the Rules”) which apply to this Court in cases of this nature, an appeal such as that which has been foreshadowed by the mother does not operate as a stay on the Orders under appeal.
In summary, a party can only apply for a stay of the orders in this case (“the Orders”) if an appeal has been started or a party has applied for leave to appeal.
Notice of Appeal
Mr Hoult on behalf of the mother handed the Court a Notice of Appeal signed 13 May 2009 which was marked as Exhibit A2. He has told the Court that appeal was filed on 13 May 2009. That notice contained three grounds of appeal which were:
“1.That Federal Magistrate O’Sullivan placed insufficient weight on undisputed matters relating to domestic violence, such as the father’s prosecution for assault and the making of a State Intervention Order.
2.That Federal Magistrate O’Sullivan failed to take into account the impact of domestic violence on the capacity of the parties to communicate with respect to the change of schools and other matters ancillary to the parties capacity to communicate with each other.
3.That Federal Magistrate O’Sullivan gave insufficient weight to the impact and effect of the father’s domestic violence considering the factors referred to in section 60CC and in particular section 60CC(2)(b), section 60CC(3)(f), (i) and (j).”
The Court was told by Mr Hoult that inquiries had been made of the Appeals Registrar of the Family Court of Australia that indicated that the mother's appeal would not be heard until July or August 2009.
No issue was taken with the Court dealing with the stay application. Today, the father has filed in Court a response to the application in a case. That response was supported by an affidavit of the father affirmed 13 May 2009. The father sought that the mother’s application in a case be dismissed.
Mr Hoult handed to the Court a Summary of Argument which was marked as Exhibit A1. Counsel for both parties addressed the Court having regard to the principles to be applied in dealing with a stay application.
The law
The law in respect of applications for a stay of parenting orders, pending appeal was discussed by Burr J, in decision of Champness & Hansen (2008) FamCA 538. His Honour in that decision considered a number of decision of the Family Court from Carlin (1977) FLC 93-20 through to Samson & Hartnett (2007) FamCA 732. His Honour also referred to the following cases:
a)In the marriage of Kelly (1981) FLC 91-017 where Fogarty J stated a stay is not granted as a matter of course, and that appropriate or special circumstances need to be shown.
b)the decision in Carlin (supra) for what matters may be relevant for a stay being:
i)the rights of the children;
ii)the delay as to the appeal;
iii)whether the refusal of a stay renders a successful appeal nugatory;
iv)the hardship to the respondent in comparison to the hardship of the appellant; and
v)the grounds of appeal.
These issues were also discussed in the decision of Clement & Clement (1981) FLC 91-013 where it was said at 76-175:
“In determining whether a stay should be granted, the welfare of the child is the paramount consideration. It is especially desirable that the frequency of any changes in the custodial arrangements relating to the child should be limited as much as possible. If the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt with in a reasonable and the present circumstances of the child are satisfactory, it will be appropriate to grant a stay of proceedings for at least a short period.”
Those cases make clear the question of whether or not grant a stay is a discretionary one. A stay should not be ordered as of right or as a matter of course and thus the onus falls to the mother, in this case, to demonstrate a proper basis for a stay.
The relevant matters that can be identified for consideration in determining this application are:
a)whether refusing a stay will render a successful appeal nugatory or make it impossible or impracticable to restore the position;
b)any hardship that would be suffered by each party as a result of granting or refusing a stay;
c)the grounds and merits of the appeal;
d)whether there has been a delay in applying for the stay;
e)the bona fides of the applicant for the stay;
f)the timing of the appeal; and
g)the best interests of the children.[3]
[3] see Sampson & Hartnett (2007) FamCA 732
Turning then to a consideration of those matters.
Whether successful appeal nugatory if stay refused
The mother’s Summary of Argument on this issue said:
“…
6.To deny a stay in this case will render an appeal nugatory (see Kelly supra and Carlin and Carlin (1977) FLC 90-320).
7. If the mother is successful on appeal the children’s school will be changed again and there will be a further substantial change in the time that the children spend with both parents.
…”
Mr Hoult said that the mother’s application for a stay was based, in part, on this ground. It was submitted if a stay was not granted why would the mother appeal given what he told the Court he understood would be the likely date for the hearing of the appeal.
Mr Hoult advanced the submission that if a stay was not granted it would affect the mother’s right to natural justice. Ms Brooker said and I agree that this submission should be rejected.
This is a case where the children were settled in schools and crèche until the mother unilaterally changed those arrangements in March 2009. The Orders made on 8 May 2009 returned the children to their original school/crèche. The parties had separated, and as there were no parenting orders in place there were concerns about the children's best interests on an interim basis.
The Court will be in a much better position at the next interim hearing date in August 2009, (and at the final hearing) to determine what arrangements should be made for the children's schooling and living arrangements, as there will be family report and some independent evidence before the Court.
In the event the Appeal Court decides this Court was in error, the children may have to change school/crèche and spend time arrangements. However that will also be the case if the father is successful at final hearing but a stay were granted today. There is nothing before the Court to suggest that the children could not go return to the school/crèche in [S] if that is what is decided at the final hearing. In my view, the refusal of a stay, given the nature of the interim orders that were made, does not render a successful appeal nugatory or make it impossible or impracticable to restore the position that existed before that time.
Hardship
There were no specific submissions advanced on this ground on the mother's behalf. I am cognisant that implicit in the mother's submission on the previous ground is a submission that she would suffer hardship. Mr Hoult acknowledged one of the difficulties facing the mother was the father should have the benefit of the “fruits of litigation.”
Ms Brooker submitted that the father would face hardship if a stay were granted. There would no orders to fall back on and the situation that faced the children before 8 May 2009 would continue.
As the reasons given on 8 May 2009 indicated:[4]
[4] Paras.82-89 of Josey & Meibos [2009] FMCAfam 470
“82.A significant factor in my view in these proceedings is not only the mother’s actions referred to above but the opportunity for the children to maintain a meaningful relationship with their father. I am not satisfied the mother’s proposal maintains or affords the children the level of involvement with and opportunity to spend time with the father that they had before the mother moved their school and residence.
83.Presently it appears the children have undergone a lot of changes in a short space of time. There may be others in the future as the Court was told the mother is pregnant and in her first trimester. The changes brought about by the mother have seen them miss a routine of time with the father, move from their previous home (which they are sharing with the mother’s new partner) and change schools/crèche between terms and have to find a new network of friends there.
84.In the context of separated parents the ability to maintain touch with the school and crèche (and the extended networks they offered) they attended before the mother moved cannot be underestimated as an anchor enabling the children to weather other changes in their lives including the flow-on effect of their parents separation. An order in the terms sought by the father would also afford them the benefit of spending time with their father as part of their normal routine (i.e. before and after school). There was no suggestion the father would not be able to care for the children and attend to their needs before and after school and whilst they were spending time with him.
85.Counsel for the mother acknowledged his client should not have unilaterally changed the children’s school/crèche. However the Court was asked to consider whether making an order changing the school/crèche back would be in their best interests.
86.It is indeed regrettable that whatever order I make on an interim basis may adversely impact on the children at least in the short term. I have as I said earlier considered the proposals of both parties in relation to the children’s living arrangements. I am not satisfied the mother fully considered the impact on the children and the changes to the existing routines before taking the action she did.
87.Even taking into account the roles of each parent so far as I am able to determine that on the material before me prior to the move and noting that the mother may well have some greater flexibility the children are young and given the background referred to above it would be least disruptive for them to spend week and week about with changeover before and after school/crèche. In considering such an order I have also been mindful this will minimise travel in the week they are with the father. That arrangement will not commence to Friday 15 May to allow the necessary arrangements to be made with both schools and crèche and the parents to sign all such documents as is necessary to do so.
88.In coming to such a conclusion I have considered the length of time they will apart from the mother and the level of communication between the parents and factored in the level of involvement they had with their parents before the move. I am of the view in the circumstances brought about by the mother such an arrangement on an interim basis affords the opportunity for the children to build back up some of the stability they had prior to the recent changes and reintegrate back into a familiar school/crèche that will offer them the anchor referred to earlier.
89.There are of course other alternative available to these parents. The material before the Court shows they have been able to come to arrangements in the past in relation to time with the children without the intervention of lawyers and it is possible they will do so again.”
The concerns regarding hardship apply not only for the parties but also for the children. For the reasons referred to earlier, the absence of orders setting out the children's living and spend time arrangements cannot in my view be put to one side even in the context of this sort of application.
I am not satisfied that there will be less hardship if I grant the stay than hardship for the mother if I refuse the stay.
Grounds of appeal
As noted earlier, the Court was told by Mr Hoult the mother’s Notice of Appeal was filed yesterday and was not likely to be heard until July or August 2009. The Notice of Appeal sets out the grounds of appeal which have been outlined at paragraph 10 above.
The first ground was the Court placed insufficient weight on the undisputed matters relating to domestic violence such as the father's prosecution for assault and the making of a state intervention order.
Mr Hoult told the Court on instructions it was the mother's submission that the Court did not sufficiently take into account violence and the father's attitude to violence in the context of the Orders made on
8 May 2009. He also advanced the submission that one of the grounds the mother would rely on in the Appeal was insufficient weight had been placed on the evidence of violence during the parties' relationship and there needed to be more evidence before the Court about these issues.
Ms Brooker noted a solicitor's failure to properly prepare his client’s case did not amount to grounds for an appeal. Ms Brooker in response said the mother and her solicitor had ample opportunity to prepare their case before the Court. By reference to the decision of 8 May 2009,
Ms Brooker submitted that the children's best interests, including the risks and issues of violence and related issues, were all considered by the Court in making the Orders. Ms Brooker submitted, by reference to the decision in Carlin, that there were in this case no special circumstances warranting a stay being made.
Ms Brooker's submission was that the mother’s application in light of the above matters was in fact simply an attempt on the mother's part to delay and an illustration of what her client complained of which was that for the mother it was "her way or the high way".
The reasons given extempore on 8 May 2009 made clear violence was considered. The following paragraphs are just some examples of this:[5]
[5] see Josey & Meibos [2009] FMCAfam 470 at paras.63-89
“…
68.In this case both parties agreed there had been family violence during cohabitation. There have also been proceedings for intervention orders.
69.There are also other grounds on which the presumption may be rebutted. The material on the Court file in relation to this matter makes clear that there is ongoing conflict between these parents. The social science research into children makes clear that young children are especially vulnerable to family conflict.
…
75.Given the finding regarding the rebuttal of the presumption in section 61DA of the Act the Court is required to consider making interim parenting orders in the best interests of the children as a result of the application of the relevant factors in section 60CC of the Act and taking into account the objects and principles set out in section 60B.
81.Accordingly I am cognisant of the need to put in place spend time arrangements that allow the children to settle into a routine again in both houses and enjoy time with both parents. I have considered both parties proposals for the children to spend time with the other parent.
…
89.There are of course other alternative available to these parents. The material before the Court shows they have been able to come to arrangements in the past in relation to time with the children without the intervention of lawyers and it is possible they will do so again.”
Mr Hoult advanced the submission he was instructed to make. However it was advanced against the mother having been at all times represented by Counsel before the Court, when no request was made for an adjournment either at the hearing on 4 or 5 May 2009 or indeed before the Court delivered reasons and made orders on 8 May 2009.
In light of those matters and notwithstanding those referred to in
Mr McBain's affidavit, I am not satisfied that, as a ground of appeal, would favour a grant of stay in this matter.
The next ground was that the Court failed to take into account the impact of domestic violence on the capacity of the parties to communicate with respect to the change of school and other matters ancillary to the parties' capacity to communicate with each other.
The reasons given on 8 May 2009 noted that the issues of violence and communication and the Orders were fashioned with this in mind.
The third ground of appeal was that the Court gave insufficient weight to the impact and effect of the father's domestic violence in considering the factors referred in section 60CC and in particular section 60CC(2)(b), section 60CC(3)(f),(i) and (j).
I have already referred to the difficulties facing this submission in the face of the reasons for decision.
In the context of the grounds of appeal and the complaint that insufficient weight was placed on the evidence of domestic violence,
I note the decision in House v King (1936) 55 CLR 499 at 504 to 505 where the Court said:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that judges composing the appellate Court consider that if they had been, the position of the primary judge they would have taken a different course. It must appeal that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate Court may exercise its own discretion and substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts is unreasonable or plainly unjust, the appellate Court may infer that in some way there has been a failure to properly exercise of the discretion which the law opposes in the Court at first instance.”
I also refer to the decision of the High Court in Gronow v Gronow (1979) 144 CLR 513, at 519 to 520 where Steven J said:
“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 the authority teaches that error in the proper weight to be given to a particular matter may justify reversal on appeal, it is also well established that it is never enough for an appellate Court left to itself would have arrived at a different conclusion. When no error or 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 ground which only involve conflict assessments of matters of weight.”
Finally, I also note the decision of Doherty (1996) FLC 926-52 at 82-682 where Baker J said:
“The exercise of discretion may be vitiated if a trial judge fails to give sufficient weight to a relevant factor. However, Stephen J as he was in Gronow, observed that this ground of appeal needs to be viewed with considerable caution.”
A number of difficulties face the mother’s application for a stay on this ground. The Orders were made in the context of an interim parenting case where there was only limited evidence and the reasons for decision make that clear. Another difficulty facing the mother is that in support of her application for stay, she now says through her solicitor that despite having had time on 4 and 5 May 2009 and between 5 and
8 May 2009, there needed to be more evidence before the Court.
Consideration was given to the issue of violence and communication in the reasons for decision when making the Orders. It is clear from the authorities referred to that an appeal court does not lightly overturn a trial Court exercising its discretion as to the weight to be given to particular evidence. There was no application for an adjournment and no other request was made of the Court to put other material before the Court before dealing with the interim application.
The issues of violence and communication were addressed in the reasons given extempore in accordance with the legislative pathway set out in Goode. The Appeal Court may come to a different conclusion but that may not mean that the appeal would be successful. Considering all of the above matters, I do not think that the mother has made out an argument that this ground favours a stay.
Delay
I note paragraph 8 in Exhibit A1 of the submissions in support of a stay application. The application in a case seeking a stay was filed on 11 May 2009. There has been no delay in the mother filing that application.
Bona-fides
Mr Hoult submitted that given the earlier factor, his client's bona fides could not be impugned. Ms Brooker had already made comments which I referred to relevant to this factor. Given the background to this matter I cannot be satisfied this factor tells one way of the other in support of an application for a stay.
Timing of Appeal
As mentioned earlier, Mr Hoult told the Court inquiries made of the Family Court of Australia Appeals Registrar indicated that the appeal would be heard in July or August 2009. It is difficult for the Court to take this factor properly into account without specific evidence as to when it will be heard. However, the Court was told from the bar table by Mr Hoult that the appeal will be heard in July or August 2009.
In the circumstances, however, the Court cannot be certain whether an appeal will be heard or determined before either the adjourned date or the trial in November 2009. The Court cannot be satisfied that this factor tells in support of the application for a stay.
Best interests of the children
Mr Hoult told the Court that he was instructed that notwithstanding the orders sought in the application in a case filed on 11 May 2009, he understood his client only wanted a stay of the orders concerning the return of the children to their school and crèche in the [P] area, and the time spent with the father orders.
Ms Brooker submitted that a stay would not be in the best interests of the children for the following reasons:
a)as there would be instability, if a stay were granted, for all involved, along with the associated uncertainty of the legal proceedings and the absence of interim parenting orders; and
b)given what had been the situation before, it was not in the children's best interest to miss out on time with their father and the opportunity for a meaningful relationship with both of their parents.
The reasons given on 8 May 2009 make clear the relevant factors in section 60CC of the Act were weighed and considered and that the situation in which the parties presented before the Court was unsatisfactory. At this stage, the children have only been in school/crèche in the [S] area for a limited time. If the Court were to grant a stay, even if it were to allow the mother to effectively amend the orders sought in the application in a case now, there is still the possibility that at a later stage there may be an order returning them to their school/crèche in the [P] area and time with the father. That would see the children having to make an even greater adjustment then and could be particularly difficult and taxing and would ask a great deal of them in the circumstances.
These are the difficulties that confront these children as a result of circumstances imposed on them by the actions of one parent. As the reasons given made clear, the arrangements in the children's best interests, at least on a final basis, await further determination by this Court. The Court is not satisfied that a consideration of the best interests of the children warrant a grant of a stay in this matter.
Conclusion
A decision to grant a stay is a discretionary one, with the onus on the applicant to demonstrate a proper basis for a stay. On balance, having considered all of the matter outlined in these reasons, the Court is not satisfied that the circumstances in this case warrant a stay being granted. Subject to hearing from the parties on any costs issue, the application in a case filed 11 May 2009 will be dismissed.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of O'Sullivan FM
Associate: Rachelle Lombardo
Date: 25 May 2009
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