Kelly and Hughes

[2019] FamCA 621

FAMILY COURT OF AUSTRALIA

KELLY & HUGHES [2019] FamCA 621

FAMILY LAW – JUDGMENTS – Stay – where final parenting orders were made and judgment  delivered following a defended hearing – where a change of residence was ordered – where the child is living with the father – where the mother has filed a Notice of Appeal in relation to the final orders and seeks a stay of those orders pending the final outcome of the appeal – where the stay application is opposed by the father and Independent Children’s Lawyer – where the stay would deprive the father of the benefit of the judgment – where the mother is seeking orders that are different to those sought in the appeal – where the best interests of the child and his welfare is given considerable weight – where the father appears to be taking the welfare of the child seriously and has done all that was recommended in terms of health, education and therapeutic work – where the final orders were put in place in circumstances where the child needs to be protected from the mother’s tendency to react to unwelcome events with a high level of anger and blame towards those she holds responsible – where if the stay application was granted hardship would fall most heavily upon the father – where the impact would be adverse if the stay application was successful and the appeal was unsuccessful – where the child would suffer significant stress and confusion if his residence was again changed – where the stay application is dismissed.

The Family Law Act 1975 (Cth)

JRN & KEN v IEG & BLG (1998) 72 ALJR 1329
Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Trahn & Long (No. 2) [2008] FamCAFC 194
In the Marriage of Clemett [1981] FLC 91-013
Sheldon & Weir (Stay Application) [2011] FamCAFC 5
In the Marriage of Carlin (1977) 29 FLR 497

APPLICANT: Ms Kelly

RESPONDENT:	Mr Hughes
INDEPENDENT CHILDREN’S LAWYER:	Krstina Wooi Lawyer

FILE NUMBER: NCC 1801 of 2015

DATE DELIVERED: 4 September 2019

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 29 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr McConaghy

SOLICITOR FOR THE APPLICANT: Lazarus Lawyers

COUNSEL FOR THE RESPONDENT: Mr Weightman

SOLICITOR FOR THE RESPONDENT: LMC Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Mooney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Krstina Wooi Lawyer

Orders

1. The Application in a Case (stay) filed by the mother on 24 July 2019 is dismissed.

2. The Application in a Case (review) filed by the mother on 8 August 2019 is 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 Kelly & Hughes 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 NEWCASTLE

FILE NUMBER: NCC 1801 of 2015

Ms Kelly

Applicant

And

Mr Hughes

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This is an application by Ms Kelly (“the mother”) for a stay of final orders made in this Court on 13 June 2019.

2. The orders were made after a four day trial in May 2019. The orders related to parenting arrangements for one child, B, now aged seven years. The orders provided for a change of residence from the mother to the father, commencing on the day that judgment was delivered.

3. The Court found “because the mother has a tendency to react to unwelcome events with a high level of anger and blame towards those she holds responsible, the child needs to be protected from that reaction”.

4. The opinion of the Family Consultant, with which I agree, is that the mother would “tell B her side of the story” unless time was supervised after the change of residence.[1]

   [1] Reasons for Judgment, par 443

The June 2019 orders

1. The orders provided for a period of 12 weeks from the date of the orders of no time and communication with the mother for the child. Thereafter, for six months there was to be weekly communication by telephone and supervised visits at a contact centre on each alternate Sunday. That second phase is due to begin in mid-September 2019. Thereafter, time was to be at such other and/or additional times as agreed between the parties. Effectively, at the discretion of the father. The earliest date after which there is no further defined time for the child with the mother would be mid-March 2020.

Appeal

1. The mother filed a Notice of Appeal on 10 July 2019. There are 11 grounds of appeal, most of which contain several internal dot points.

Opposition to a stay

1. The application for a stay was opposed by the father, who responded with an application for dismissal. His opposition was based on the need for stability for the child, pending the determination of the appeal.

2. Two points were raised by counsel, both valid, about the consequences of a stay being granted:

   (1)That in the event that the appeal of the mother was unsuccessful, there would then be a transfer of the child back to live with the father;

   (2)That in the event that the appeal of the mother was successful, it would be very highly unlikely that the Full Court itself would rehear the matter. It was submitted, correctly, in my view, that there might be a contest on living arrangements pending a retrial, but that the latter, a retrial, would almost certainly be the outcome of a successful appeal.

3. The Independent Children’s Lawyer (“ICL”) was also opposed to the granting of a stay. Her opposition was based on the need for stability for the child, the irrelevance of material in the affidavit of the mother, which post-dated the trial, and the overall prospects of success in the appeal.

4. The ICL otherwise supported the submissions made on behalf of the father.

The Application in a Case

1. The relevant Application in a Case and affidavit by the mother in support of a stay were filed on 24 July 2019. Accordingly, there was no delay in making the application. The application was allocated a date on 27 September 2019.

Application for review of a decision by registrar

1. On 8 August 2019 the mother filed a second Application in a Case, seeking effectively to review the decision of the registrar who had allocated the date of hearing for the stay application. That second application was listed for 20 August 2019.

2. The parties were subsequently advised by the Court that the stay application would be heard on 29 August 2019 and that the review application would be dismissed on that day. That is not to say that the Court considers that the registrar was in error in respect of date allocation. Rather, the Court was inclined to reduce two court events to one for the benefit of the parties.

Change of solicitors for the mother

1. On Monday 26 August 2019 a Notice of Address for Service was filed by solicitors who had become the new legal representatives for the mother.

2. On 27 August 2019 the previous solicitors for the mother, who had represented her in the trial, filed a Notice of Ceasing to Act. The notice had been signed by the relevant solicitor on 14 August 2019.

Hearing of the stay application

1. The matter was listed for hearing at 2.00 pm on Thursday 29 August 2019.

2. At 12.48 pm on that day, a Case Outline was provided by email to the Court and the legal representatives for the parties. Such late delivery was, of course, a source of minor delay and some frustration for the other two parties and the Court. By saying that, I am not critical of the solicitor and counsel for the mother. They had only a period of days to read and understand the history and ongoing nature of the matter.

3. The Court has no knowledge of why the lawyers who had represented the mother in the trial ceased acting for her. They, too, had been briefed very close to the date of trial, which led to an adjournment of original trial dates to allow for preparation on behalf of the mother.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The Applicant mother

   (a)Application in a Case filed 24/07/2019;

   (b)Affidavit of the mother filed 24/07/2019;

   The Respondent father

   (c)Response to an Application in a Case filed 27/08/2019;

   (d)Affidavit of the father filed 27/08/2019;

   Other

   (e)Orders and Reasons for Judgment dated 13/06/2019.

2. The matter proceeded by way of submissions.

The Law

1. The filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from.[2] 

   [2]Family Law Rules2004 (Cth), Rule 22.11 (1)

2. The principles which govern the granting of a stay involve an exercise of judicial discretion.

3. The principles generally relevant to the granting of a stay are articulated in the 2009 decision of Aldridge & Keaton (Stay Appeal)[3] and the 2008 decision Trahn & Long (No. 2)[4] and others. They represent a drawing together of considerations which have emerged from decisions of the Full Court commencing with Carlin & Carlin in 1977[5] and Clemett & Clemett in 1981.[6]

   [3]Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

   [4]Trahn & Long (No. 2) [2008] FamCAFC 194

   [5]In the Marriage of Carlin (1977) 29 FLR 497

   [6]In the Marriage of Clemett [1981] FLC 91-013

4. Amendments to the Family Law Act in 1995 and subsequent amendments, affected the paramountcy principle with respect to the granting of a stay in children’s matters. The order granting a stay is not a parenting order so the requirement that a child’s interest be the paramount consideration does not apply. However that does not detract from the special consideration which has been relevant to stays in children’s matters from the outset of decision making in this Court.[7]

   [7]In the Marriage of Carlin (1977) 29 FLR 497

5. The principle is captured in the decision of the High Court in  JRN & KEN v IEG & BLG (1998) 72 ALJR 1329, where His Honour Justice Kirby in his discussion of the circumstances when there could be and should be, departure from the principles which govern the determination of stays, spoke of deviation from the usual rules in certain circumstances and gave as examples:[8]

   i.The operation of the criminal law;

   ii.With regards to laws designed to protect the public; and

   iii.In the opinion of His Honour “cases which affect significantly third parties who are not parties before the Court, and in particular children whose welfare must always be in the mind of a Court, in making an order affecting their interests”.

   [8]JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 [16]

6. There are no mandatory considerations but there are conventional considerations arising from authority as outlined above.

7. They are as follows and several of those factors apply here :

   (a)The onus to establish a proper basis for a stay is on the applicant without the necessity for the applicant to demonstrate any special or exceptional circumstances;

   (b)A person who has obtained a judgment is entitled to the benefit, sometimes referred to as the “fruits” of that judgment;

   (c)A person who has obtained a judgment is entitled to presume the judgment is correct;

   (d)Bona fides. The applicant for the stay must be making an application in good faith;

   (e)A stay may be granted on terms that are fair to all parties which may involve a Court weighing the balance of convenience and the competing rights of the parties;

   (f)Whether there is a risk that an appeal could be rendered nugatory if a stay was granted;

   (g)Some preliminary assessment of the strength of the proposed appeal and whether the appellant has an arguable case;

   (h)The desirability of limiting the frequency of any change in the child’s living arrangements;

   (i)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;

   (j)The best interests of the child must be considered although they are not paramount.[9]

   (k)Hardship resulting from a stay being granted or refused should be considered.

   [9]Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106; Trahn & Long (No. 2) 2008 FamCAFC 194

Bona fides

1. The appeal was brought in good faith by the mother and in a timely way.

Is there a proper basis for a stay?

1. This is not a situation where a holding position preserving arrangements is sought. The mother seeks a stay of all the June 2019 orders, pending the outcome of the appeal. She asks the Court to make a new set of orders, pending that appellate determination. The orders sought by the mother, pending the outcome of the appeal, can be summarised as follows:

   ·   a return of the child to living with her;

   ·   shared parental responsibility;

   ·   alternate weekends for the child with the father from Friday to Monday;

   ·   for one week of each term holiday;

   ·   weekly telephone contact.

2. There was a condition to the proposed time and communication, namely “provided that the respondent father attends mediation and an appropriate parenting class and provides documentary evidence of attendance through his solicitor.”

3. The orders sought by the mother, in the appeal, were significantly different. Less time for the child with the father was proposed and the orders were conditional in a different way. Summarised, they are as follows:

   ·   sole parental responsibility to the mother, with the mother to advise father of decisions taken;

   ·   residence with the mother;

   ·   weekly telephone contact;

   ·   alternate weekends provided that the father’s partner, or the paternal grandmother “…is present in the father’s home with the child and the father”.[10]

   [10] Notice of Appeal filed by the mother 10/07/2019, proposed order 6(b)

4. There was no provision for holiday time.

5. The proposal, pending appeal, offers more time for the father than the 2016 consent orders provided, had they been complied with.

6. The proposal for orders in the appeal offers less time and introduces supervision.

7. It is hard to reconcile either proposal with the contention of the mother[11] that the child is presently not safe with the father or that the mother’s appeal would be rendered nugatory, ineffective, if a stay is not granted.

Relevant considerations

[11] Affidavit of the mother filed 24/07/2019, par 27

The best interests of the child

1. The best interests of this child must be given careful consideration.

2. I note that the mother sent a letter on 16 June 2019 to the child, three days after the change of residence, which included this message:

   I didn’t know they would take you away from [Y] and me like this. I cried all the way home and haven’t really stopped.
   
   

3. The father withheld the letter from the child. The content of the letter adds weight to the proposition that the child needs protection from the mother’s distressed reactions.

4. The mother submits that separation of the child from both herself and his five‑year old half‑sister, Y, would have had a traumatising effect on him.

5. The mother delivered the child to the Family Consultants at the commencement of the day on which judgment was delivered and he subsequently went home with his father. It would certainly have surprised and confused the child. The reasons for the June 2019 orders contemplated that the child “will certainly feel the shock and upheaval of moving away from the mother to live with his father. He will miss the daily company of his mother and sister and probably worry about them.”[12]

   [12] Reasons for Judgment, par 390

6. The protection of the sibling bond was, likewise, considered. A copy of the orders and reasons were forwarded to the Department of Family and Community Services (now the Department of Community and Justice) in order to provide information about the subject child and his sister,  spending time together.

7. The mother’s child Y is not a subject child. The father is not her biological psychological or legal parent. There was a dispute between the parties over how contact between the subject child and his sister was to be arranged but, in my view, that has no particular bearing on this stay application.

Could refusing the stay render the appeal nugatory?

1. In my view, it could not. The appeal by the mother will give rise either to a continuation of the parenting arrangements put in place in June 2019 or new arrangements after a further determination.

Does the mother have an arguable case?

1. It is difficult to say that there is not an arguable case but the appeal does not present with strong grounds.

2. The grounds challenge findings of fact without identifying the basis for asserted error. Other grounds raise challenges to the weight given to certain considerations. There is one ground which raises lack of procedural fairness in relation to the opportunity to obtain a single expert report without a factual basis for the challenge.

3. There does not appear to be grounds based on errors of law. Mostly, the grounds relate to weight given to particular matters.

Does the father lose the benefit of the judgment?

1. In my view, the father would.

2. The work that has been undertaken with the child in terms of settling him in the father’s home and at school and with the guidance of a psychologist could all be lost.

3. The child would be at risk of losing trust and confidence in the father with whom he has had a close and loving relationship. The trust between the child and other members of the father’s household may well be similarly affected.

4. Further, it was submitted that the admittedly untested evidence of the father bodes well for the welfare of the child. He has made friends at school, has been checked over by a doctor consulted by the paternal family who provided a thorough check-up and had no concerns about his health, his health having been a subject of many concerns of the mother at trial.

Is there hardship for either party?

1. The mother has to manage her own distress and disappointment over the outcome of the case and, also, the feelings and reactions of her younger child. That was contemplated in the judgment.

2. The father is entitled to have the benefit of the judgment. He has done all that was recommended in terms of health, education and therapeutic work. He appears to be taking the welfare of the child seriously.

Conclusion

1. The factors of the best interests of the child, the benefit of the judgment remaining with the father, the mother having at least an arguable case but not strong grounds of appeal all weigh in favour of a stay not being granted.

2. Orders are made accordingly.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 4 September 2019.

Associate: 

Date:  4 September 2019