Keane and Keane (No 2)

[2020] FamCA 609

FAMILY COURT OF AUSTRALIA

KEANE & KEANE (NO. 2) [2020] FamCA 609

FAMILY LAW – PRACTICE AND PROCEDURE – Stay application – Where the mother seeks a stay pending appeal of final parenting orders – Where final parenting orders provide for the child to spend supervised and ultimately unsupervised time with the father –Where the mother submits that there is a risk that if the stay is not granted the appeal may be rendered nugatory, that the appeal is strongly arguable and that it is in the best interests of the child for the frequency of any changes in the child’s living arrangements be limited and that to require that the child have any time with the father would so directly impact upon the mother as not to be in the best interests of the child – Where the father submits that the mother does not have a strong case on the appeal, that he is entitled to the benefit of the judgment, that the mother does not challenge the finding that the father does not pose an unacceptable risk to the child, and that delaying recommencement of time is not in the best interests of the child as there may be a negative impact on the child’s ability to reconnect with the father at all – Where the Independent Children’s Lawyer makes an oral application that a limited stay be ordered which allows for the commencement of supervised time but not to have time progress to unsupervised time – Where the mother and the father do not oppose the ICL’s application – Orders made staying the movement to unsupervised time – Mother’s stay application otherwise dismissed.

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Clemett & Clemett (1981) FLC 91-013
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499

Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681

JRN & KEN v IEG & BLG (1998) 72 ALR 1329
Keane & Keane [2020] FamCA 99
The Commissioner of Taxation v Myer Emporium Ltd [No.1] (1986) 160 CLR 220

APPLICANT: Ms Keane

RESPONDENT: Mr Keane

FILE NUMBER: LNC 306 of 2018

DATE DELIVERED: 13 July 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: McEvoy J

HEARING DATE: 13 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fitzgerald

SOLICITOR FOR THE APPLICANT: Rae & Partners Lawyers

COUNSEL FOR THE RESPONDENT: Mr Turnbull

SOLICITOR FOR THE RESPONDENT: Bishops Barristers & Solicitors

COUNSEL FOR INDEPENDENT CHILDREN’S LAWYER: Mr Murray

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Murray & Associates

Orders

1. Paragraph 4(b) of the orders of 8 May 2020 be varied so that such time continue pending the hearing and determination of the mother’s appeal, or further order.

2. Paragraphs 4(c) to 4(g), 5 and 14(a) of the orders of 8 May 2020 be stayed pending the hearing and determination of the mother’s appeal, or further order.

3. The solicitors for the mother have leave to provide the expert report of Dr E, the Family Report, and the Court’s reasons for judgment in this matter to the mother’s medical practitioner and psychologist.

4. The mother’s application in a case dated 29 June 2020 be otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Keane & Keane has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: LNC 306 of 2018

Ms Keane

Applicant

And

Mr Keane

Respondent

REASONS FOR JUDGMENT

1. On 8 May 2020 I made orders and published reasons in Keane & Keane [2020] FamCA 99. Amongst other things the orders provide a regime for the recommencement of the child’s time with the father: commencing with supervised time, and moving to unsupervised time during the day and ultimately to unsupervised overnight time.

2. On 3 June 2020 the mother filed a Notice of Appeal, and on 29 June 2020 an Application in a Case seeking that orders 3, 4, 5, 6, 8, 9, 10, 11, 12, 13 and 14 of the 8 May 2020 orders be stayed pending the hearing of the appeal. The mother’s application also sought leave to provide the expert Report of Dr E, the Family Report, and the Court’s reasons for judgment in this matter to the mother’s medical practitioner and psychologist. The mother’s application was supported by an affidavit affirmed 24 June 2020, and written submissions in support of the application for a stay filed 10 July 2020.

3. The father resisted the granting of a stay, and the mother’s application was heard by way of Microsoft Teams on 13 July 2020.

4. The principles governing the considerations to be taken into account in applications for a stay pending an appeal, including from a discretionary judgment, are well known but they are essayed by the Full Court in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 at [17]-[18] (Bryant CJ, Boland and Crisford JJ). Their Honours there refer to House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513; The Commissioner of Taxation v Myer Emporium Ltd [No.1] (1986) 160 CLR 220 at 222; Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013 and JRN & KEN v IEG & BLG (1998) 72 ALR 1329 at 1332.

5. The authorities stress the discretionary nature of such an application, which should be determined on its merits. The Full Court in Aldridge & Keaton summarised the principles as follows:

   ·the onus to establish a proper basis for the stay is on the applicant for the stay.  However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;

   ·a person who has obtained a judgment is entitled to the benefit of that judgment;

   ·a person who has obtained a judgment is entitled to presume the judgment is correct;

   ·the mere filing of an appeal is insufficient to grant a stay;

   ·the bona fides of the applicant;

   ·a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;

   ·a weighing of the risk that an appeal may be rendered nugatory if a stay is  not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;

   ·some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;

   ·the desirability of limiting the frequency of any change in a child’s living arrangements;

   ·the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and

   ·the best interests of the child the subject of the proceedings are a significant consideration.

6. The mother’s written submissions filed in support of her application for a stay refer to some of these principles and some of these authorities, together with other authorities. The mother contends that her application is bona fide, that there is a risk that if the stay is not granted the appeal may be rendered nugatory, that the appeal is one of substance raising important questions, and that the appeal is strongly arguable. Insofar as the strength of the appeal is concerned, it may be observed that the mother’s submissions on the stay application traverse matters not raised, or not squarely raised, in the amended grounds of appeal. Further, the central point of the appeal appears to rest on a contention that particular findings were against the weight of the evidence.

7. The mother also submits that it is desirable that the frequency of any changes in the child’s living arrangements be limited, and that it would therefore be in her best interests for the status quo to be maintained, with the child having no time with the father until the hearing and determination of the appeal given that the child is unlikely to have a living memory of the father. The mother submits that to require that the child have any time with the father would so directly impact upon the mother as not to be in the best interests of the child.

8. The husband vigorously contests that it would be appropriate to grant the stay application. He submits, as may be accepted, that there is no occasion for orders 3, 8, 9 and 13 to be stayed, and that at the heart of the appeal is the question of whether order 4, providing for supervised time moving to unsupervised time for the child with the father, should have been made.

9. The essence of the father’s submissions is that the mother does not have a good arguable case on the appeal. Analysing each of the amended grounds of appeal, he submits that the appeal as formulated is no more than an appeal from a discretionary judgment that the mother would be able to cope with orders requiring the child to have time with the father. He points to the difficulties that appeals from discretionary judgments face, and contends that the mother’s case that she would not be able to cope is weak on the evidence at trial. In these circumstances the father submits that to deny him the commencement of time with the child and to deny the child the benefit of recommencing a relationship with her father would be inimical to the interests of justice. The father submits that the sooner time with the child is recommenced the better, and that if the recommencement of time is further delayed, there may be a negative impact on the child’s ability to reconnect with the father at all. He points also to the fact that the findings in relation to the allegations of sexual abuse of the child are not challenged, the fact that the conclusion that he does not pose an unacceptable risk to the child is not challenged, and the fact that the family violence findings are not challenged. The father submits that the mother’s failure to challenge these findings makes it extremely difficult for the appeal to succeed. The father says that he is entitled to have the benefit of the judgment, and that there is a presumption that the judgment is correct.

10. Without derogating from any of the above submissions, the father also submits that, at a minimum, and even if there is to be a partial stay of the orders, there is no reason why orders 4(a) and (b) requiring the recommencement of supervised time at the B Contact Service should be stayed. He submits that these orders do not require any movement from supervised to unsupervised time, and although the wife’s application for a stay is weak, he would be prepared to countenance a stay of the orders moving from supervised to unsupervised time if supervised time could commence and continue pending the hearing and determination of the appeal.

11. In attempting to bridge the competing positions of the parties the ICL submitted that an appropriate compromise, which would have his support as being in the child’s best interests, would be to have supervised time commence in accordance with orders 4(a) and (b), but not to have time progress to unsupervised time. This, he submitted, would be the least disruptive course in all the circumstances and he made an oral application that a limited stay of this nature be ordered.

12. In reply counsel for the mother conceded that it would be appropriate for orders 3, 8, 9 and 13 to remain in place. After a short adjournment he informed the Court that the alternative proposed by the ICL would not be the subject of any argument or submission by the mother to the contrary, and that orders in those terms would appropriately balance all the discretionary considerations at play in determining whether there should be a stay of the 8 May 2020 orders.

13. Counsel for the mother also accepted that, as well as orders 3, 8, 9 and 13 remaining in place, it would also be appropriate for orders 6, 10, 11, 12 and 14(b) and (c) to remain in place.

14. The father having accepted this compromise position there will be orders for a limited stay of the 8 May 2020 orders in the terms expressed at the commencement of these reasons. The stay will operate to prevent supervised time from moving to unsupervised time. There will also be orders that the solicitors for the mother have leave to provide the expert report of Dr E, the Family Report, and my reasons for judgment in this matter to the mother’s medical practitioner and psychologist. The reasons for judgment foreshadowed my preparedness to make orders facilitating the provision of relevant material to the mother’s treating health professionals, and orders in these terms were not opposed by the father. 

15. The mother’s application in a case dated 29 June 2020 will be otherwise dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McEvoy delivered on 13 July 2020.

Associate:     

Date:              27 July 2020