JRJ v YN
[2017] WASCA 2
•10 JANUARY 2017
JRJ -v- YN [2017] WASCA 2
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WASCA 2 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:125/2016 | 20 DECEMBER 2016 | |
| Coram: | BUSS P NEWNES JA | 10/01/17 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application for stay dismissed | ||
| B | |||
| PDF Version |
| Parties: | JRJ YN |
Catchwords: | Practice and procedure Order of Family Court permitting infant son to travel overseas with mother Ex parte application for stay of order Whether primary judge erred in exercise of discretion Turns on own facts |
Legislation: | Nil |
Case References: | House v The King [1936] HCA 40; (1936) 55 CLR 499 Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : JRJ -v- YN [2017] WASCA 2 CORAM : BUSS P
- NEWNES JA
- Appellant
AND
YN
Respondent
ON APPEAL FROM:
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram : JUSTICE MONCRIEFF
File No : PTW 1041 of 2015
Catchwords:
Practice and procedure - Order of Family Court permitting infant son to travel overseas with mother - Ex parte application for stay of order - Whether primary judge erred in exercise of discretion - Turns on own facts
Legislation:
Nil
Result:
Application for stay dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : No appearance
Case(s) referred to in judgment(s):
House v The King [1936] HCA 40; (1936) 55 CLR 499
Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168
1 REASONS OF THE COURT: On 20 December 2016, we dismissed an urgent ex parte application by the appellant for a stay of an order of Moncrieff J in the Family Court of Western Australia suspending, for a limited time, the operation of an ex parte injunction previously granted by a registrar.
2 We said we would provide reasons for our decision. These are the reasons.
3 The material before us revealed limited information about the background to the dispute. That, no doubt, was due to the urgency of the application for a stay and the fact that the appellant was without legal representation. However, as it appears from the relevant affidavits filed in the Family Court, the position is as follows.
4 The respondent and the appellant were in a de facto relationship between January 2010 and December 2014. There was one child of the relationship, KM. Following the parties' separation, KM lived with the respondent. The appellant ordinarily resides in Sydney and spends time with KM when the appellant is in Perth.
5 On 25 February 2016, consent parenting orders were made by the Family Court. They included an order in the following terms:
Travel
Full consent from [the appellant] for [KM] to travel overseas or interstate on holiday with [the respondent] at any stage. [The respondent] to provide travel itinerary to [the appellant] prior to travel.
6 On 11 November 2016, on an ex parte application by the appellant, a registrar of the Family Court made orders, relevantly, as follows:
1. The [respondent] and her servants and/or agents be restrained and an injunction is hereby granted restraining her from removing or attempting to remove or causing or permitting the removal of the child [KM] … from the Commonwealth of Australia.
2. It is requested that the Australia Federal police give effect to this order by placing the name of the child on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watch List.
3. The injunction contained in the previous paragraph of this order remain in force for a period of 2 years or until further order of the Court.
4. ...
5. The [respondent] shall have liberty to apply to set aside or vary the terms of these orders on giving 7 days' notice to the [appellant].
7 We were not provided with copies of the documents filed by the appellant in support of the application for the injunction and nor were we told the grounds upon which the injunction was sought.
8 On 14 December 2016, the respondent applied, in effect, to vary the injunction to enable her to travel to the United States with KM. In an affidavit, sworn on 14 December 2016 in support of the application, the respondent said that at the end of October 2016 she verbally advised the appellant that she intended to leave for San Francisco on 20 December 2016 and return to Australia on 21 January 2017. The purpose of the trip was to enable KM to spend time with the respondent's family, and in particular the respondent's 94-year-old great-grandmother and father who were travelling from South Africa to see KM. The respondent said that, on 14 November 2016, she was advised by the Family Court that an injunction had been granted preventing KM from travelling with her to the United States. A copy of the injunction, the application and the supporting affidavit were subsequently provided to her.
9 According to the respondent, her solicitors wrote to the appellant on two occasions asking for his consent to the travel arrangements. The appellant refused to provide it.
10 The respondent said in her affidavit that she was unsure why the injunction was obtained as she had previously travelled with KM to South Africa in April 2015 and to San Francisco in July 2016. She had returned to Australia on each occasion and was not a flight risk. The respondent offered to provide a travel bond of $3,000, to be forfeited if she did not return. The respondent sought to vary the injunction to permit her to travel with KM to the United States in the period 20 December 2016 to 21 January 2017.
11 On 16 December 2016, the respondent's application to vary the injunction came before the primary judge for hearing.
12 The appellant appeared at the hearing and opposed the variation. He put in evidence a report, dated 13 December 2016, of a forensic document examiner he had engaged which, he contended, showed that the respondent had forged the appellant's signature on KM's birth registration form to enable her to register KM with her surname rather than his. The appellant argued that the respondent now faced the prospect of prosecution for a serious criminal offence and, in those circumstances, if permitted to travel to the United States with KM, she, and KM, would not return to Australia, with the result that the appellant would lose contact with KM.
13 We do not have the benefit of his Honour's reasons for decision, but it is evident that he found that the risk of the respondent failing to return to Australia with KM was not so significant that she should be prevented from undertaking the trip. The primary judge ordered, in effect, that the respondent be at liberty to travel with KM to the United States between 20 December 2016 and 21 January 2017 and that the orders of the registrar of 11 November 2016 be suspended for the duration of that travel. His Honour ordered the respondent to deposit the sum of $3,000 with the registry of the Family Court as security for her return and, upon her return, to lodge KM's passport with the registry of the Family Court.
14 On 20 December 2016, the appellant filed an appeal notice, albeit not in the proper form, and an application for a stay of the orders of the primary judge pending the determination of the appeal. The appellant annexed to the stay application a copy of the report of the forensic document examiner. In view of the respondent's imminent departure from Australia with KM, the appellant's application was heard in the afternoon of 20 December 2016.
15 The appellant attended the hearing by telephone from Sydney. He argued that the primary judge was in error in varying the injunction and reiterated his argument that, faced with the prospect of prosecution for the alleged forgery, the respondent would not return to Australia and he would lose contact with KM.
16 The relevant principles that apply on an application of this nature may be shortly stated. The onus is on the applicant to persuade the court that there are special circumstances which justify a stay. Generally that will require the applicant to establish that a stay is necessary to prevent the right of appeal being rendered nugatory or to avoid practical difficulties in respect of the relief which may be granted on appeal. Even if that is made out, generally a stay will be refused unless the court is satisfied that the appeal has reasonable prospects of success. And it may still be refused where it appears that the balance of convenience does not lie in favour of the applicant; where, for example, the stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted. See Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 [22].
17 It may readily be accepted that if a stay is not granted the appeal will be rendered nugatory. In our view, however, the appeal has no reasonable prospect of success.
18 The decision of the primary judge to vary the injunction involved an exercise of discretion. It is therefore necessary for the appellant to show that the exercise of the discretion miscarried in one of the ways explained in House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505. That is, it is necessary to show that the primary judge made an error of fact or law, took into account irrelevant considerations or failed to take into account relevant considerations, or that whilst the error is not manifest the result is so unreasonable or plainly unjust that error may be inferred.
19 No reasonably arguable error to that effect has been shown. The appellant put the report of the forensic document examiner before his Honour in support of a contention that the respondent had committed a serious criminal offence for which she faced prosecution and in those circumstances, if permitted to travel to the United States with KM, she and KM would not return to Australia. There is nothing to suggest that his Honour did not have regard to those matters. As we have said, it is evident that his Honour was not persuaded that the risk was sufficiently significant that the respondent should be prevented from undertaking the trip with KM. On the material before us, that was a view that was open to his Honour.
20 No reasonably arguable appellable error having been made out, it follows that the application for a stay must be dismissed.
21 It was for those reasons that we dismissed the appellant's application.
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