Kulat and Azzarudin

[2018] FamCA 22

FAMILY COURT OF AUSTRALIA

KULAT & AZZARUDIN [2018] FamCA 22

FAMILY LAW – PRACTICE AND PROCEDURE – Stay – Where the father seeks a stay of orders pending appeal against substantive orders – Where the father has filed a Notice of Appeal – Where it is against best interests of child to grant the stay – Where a stay is not granted

Family Law Rules 2004 (Cth) r 22.11

Anderson & Senior (2013) FLC 93-556
Aldridge & Keaton [2009] FamCAFC 106
Clemett & Clemett (1981) FLC 91-013
Bele & Vaughan [2011] FamCA 724
Cook’s Construction Pty Ltd v Stork Food Systems Australia Pty Ltd [2008] QCA 322
Rice v Asplund (1979) FLC 90-725
Virgtel Ltd & Anor v Zabusky & Ors (No 2) [2009] QCA 349

APPLICANT: Mr Kulat

RESPONDENT: Ms Azzarudin

FILE NUMBER: BRC 1132 of 2012

DATE DELIVERED: 16 January 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 16 January 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Anderson

SOLICITOR FOR THE APPLICANT: Steven Watkinson

COUNSEL FOR THE RESPONDENT: Ms Horsley

SOLICITOR FOR THE RESPONDENT: Barry.Nilsson Lawyers

Order

1. The application for a stay of the order made 22 December 2017 be 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 Kulat & Azzarudin 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 BRISBANE

FILE NUMBER: BRC 1132/2012

Mr Kulat 

Applicant

And

Ms Azzarudin 

Respondent

REASONS FOR JUDGMENT

1. The parties in the proceedings are the parents of B (the child) born in 2006. On 22 December 2017 I made a parenting order (“the December order”) which, among other things, discharged certain parts of an earlier parenting order made on 1 May 2012 (“the earlier order”) which had provided for the child to live in Country C and there to complete his secondary education from January 2018.

2. The December 2017 order provides, among other things, for the child to remain in Australia with his mother and complete his secondary education here.

3. The child’s father has appealed against the December order and he is seeking a stay of the order pending his appeal which was filed on 4 January 2018 at the same time as this application for a stay. The child is currently in Country C with his father pursuant to the December order and is due to return to Australia on 22 January 2018.

4. Pending the determination of the stay application the father arranged for the child to commence school at E School in Country C on 8 January 2018 despite the mother’s opposition and her position at trial that if the child were required to return to Country C he should attend H School. The father had enrolled the child at E School prior to the trial in December 2017 and paid the fees for the first term so as to secure his position in the event his parenting application was successful.   

legal principles applicable to a stay application   

1. Rule 22.11 of the Family Law Rules 2004 (Cth) relevantly provides:

   (a)The filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision.

   (b)If an appeal has been started, … any party may apply for an order staying the operation or enforcement ... of the order to which the appeal or application relates.

2. The granting of a stay pending the determination of an appeal to the Full Court is a discretionary decision which will be informed by matters such as:

   (a)The bona fides of the person making the application for the stay;

   (b)Whether a successful appeal will be rendered nugatory if the stay is not granted;

   (c)The merits of the appeal;

   (d)Any delay in bringing the stay application;

   (e)When the appeal is likely to be determined; and

   (f)The balance of convenience.

3. In considering a stay of a parenting order the best interests of the child are of course a significant factor and it is generally considered to be preferable to minimise the number of significant changes a child might have to endure. [1] 

   [1]Clemett & Clemett (1981) FLC 91-013

4. Whether or not there needs to be a special or exceptional circumstance to justify a stay has been the subject of some discussion in a number of cases.[2] I have not approached the determination of this application on the basis that the father need show a special or exceptional circumstance.

   [2] Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106; cfAnderson & Senior (Stay Appeal) (2013) FLC 93-556 (as to whether special or exceptional circumstances required) at [34]; Bele & Vaughan [2011] FamCA 724; see also Cook’s Construction Pty Ltd v Stork Food Systems Australia Pty Ltd [2008] QCA 322 at [12] and Virgtel Ltd & Anor v Zabusky & Ors (No 2) [2009] QCA 349 at [19]

discussion

1. It is not suggested that the father’s appeal lacks bona fides.

2. Ms Anderson, counsel for the applicant, submitted both in written submissions and orally that if the stay is not granted the appeal will be rendered nugatory in that the child “will lose forever the chance to study at [E School]”. It is disappointing, to say the least, that counsel would misstate the evidence to such a degree. Ultimately, it was conceded that the evidence, at its highest, is that the father has expressed a “concern” to his solicitor that if the child is not able to “take up his admission this January, it is unlikely that he can again secure admission to that school”. No evidence to support that concern was forthcoming.

3. A further submission was made on behalf of the father that if the stay is not granted and the outcome of the appeal is that the child is to relocate to Country C, “the child will be harmed”. Such hyperbole has no place in proceedings in this Court.

4. The evidence relied upon by the father at trial indicated that after an interview with the child in October 2017, E School was “very pleased” to offer him a position at the school and that the principal and other members of the school hierarchy, after reviewing the child’s various certificates, were “highly satisfied with the child’s performance academically and his extracurricular activities, especially his sports.”

5. The school to be attended by the child in Country C, if he were required to return there, was an issue at trial. The mother proposed a different school, namely H School, and the father proposed at trial that, if the child did not like E School after a year, he could attend H School. Ultimately, a decision was not required as to which school in Country C the child would attend because he was to stay in Australia. If the stay is granted the mother has indicated her continued opposition to the child attending E School, which is likely to necessitate further proceedings between the parties unless the stay were granted on certain conditions.

6. The grounds of appeal are as follows:

   1.The learned trial judge failed to give adequate reasons for failing to apply the ‘rule’ in Rice v Asplund when considering whether to vary the consent orders made on 1 May 2012 in circumstances where there was no change in circumstances identified since the parties had consented to the orders.

   2.The learned trial judge erred in the exercise of her discretion to vary the orders made on 1 May 2012 because there was no, or no sufficient, evidence of a change in circumstances to warrant a reconsideration of the orders, nor was one identified.

   3.The learned trial judge gave excessive weight to the views of the child in determining what is in the child’s interests.

   4.The learned trial judge failed to give adequate weight to objective evidence of the quality of education at E School.

   5.The learned trial judge failed to consider the submission that the views of the child had been formed by the mother providing the information about the quality of the education available at E School.

   6.The learned trial judge erred in failing to give effect to her findings at paragraphs 65, 66, and 67 of her reasons for judgment by failing to order that the child attend school in Country C and spend significant and substantial time with each parent, or in the alternative, to dismiss the mother’s application.

   7.The learned trial judge’s decision is ‘plainly wrong’.

   8.The learned trial judge failed to afford the appellant procedural fairness.

7. While it might be considered difficult for the judge who made the order appealed against to determine the stay application all that is necessary (in terms of the grounds of appeal) is for the applicant to demonstrate that the appeal is not without some merit. While it is not currently apparent how grounds 7 and 8 might have any prospect of success, as noted in my reasons for judgment delivered on 22 December 2017, this was a finely balanced case and significant weight was given to the child’s wishes. The decision also reversed a previous parenting order agreed to by the parties in 2012.

8. I note that while some attack is made of the grounds of appeal by the mother’s counsel, it is not submitted that there is no arguable ground. I am unable to find that the father lacks an arguable ground of appeal although it is noted that the appeal is from a discretionary judgment and there are well established principles limiting the ability of an appellate court to interfere with such a judgment.   

9. There has been no delay in bringing the application for a stay.

10. There is no evidence as to when the appeal is likely to be heard but it may well take six to twelve months for it to be finally determined as suggested on behalf of the father.

11. As to the balance of convenience, the father has expressed a concern that if the stay is not granted and his appeal is ultimately successful, the child’s relocation at that later time will be more disruptive and resented by the child if he has completed six to twelve months of his secondary education in Australia, depending on how long it takes for the appeal to be determined.

12. The father argues that the reverse is not as potentially disruptive to the child for if he completes up to a year of his secondary schooling in Country C (while awaiting the determination of the appeal), he could more easily return to schooling in Australia if the appeal fails. The father argues this is because the child is already familiar with schooling in Australia and such a disruption is unlikely to impact on his performance given his acknowledged academic abilities. I am not persuaded by that argument.

13. The child is said by the father to have enthusiastically endorsed the idea of commencing school at E School even if only for a short time. It does seem that the father is content to rely upon the child’s wishes if they accord with his own.

14. It is submitted on behalf of the father that it would not be difficult for the mother to temporarily move to Country C to support the child with the transition, as this was her stated intention at trial. However, the mother deposes to a need to remain in Australia pending the determination of the appeal so that she can retain her employment here and meet the costs of the appeal.   

15. The mother is currently in Country C attending to personal matters and visiting family. It is her intention to accompany the child on the return flight to Brisbane on 22 January should the stay application not be successful. I note that the child flying unaccompanied was a concern raised by the father in support of the stay application despite his proposal at trial that the child travel unaccompanied.

16. If the December order is stayed there will be no order providing for what time the child is to spend with the mother (whether that be in Country C or Australia) and no order as to which school he will attend in Country C. These issues were in contention at trial although not in the same circumstances in which the parties now find themselves. Those matters may result in further proceedings although it is of course possible that the parties might reach agreement on an interim basis and of course I could impose conditions on any grant of a stay.

conclusion

1. The father bears the onus of establishing that there is a proper basis for the granting of the stay and, in my view, he has failed to do so. 

2. I reject the submission that a successful appeal will be rendered nugatory if the stay is not granted. While the child may or may not be able to attend E School, there are other schools which he could attend (as noted in the father’s evidence at trial). One such school is H School, which the mother favoured over E School at trial.

3. The child commenced school in Country C on 8 January 2018. The mother was not consulted and has made her opposition clear to the father but I do not consider the child’s recent attendance at E School to be a reason in favour of granting or indeed refusing the stay.

4. If I grant the stay and the appeal fails, the child would have to endure another change and, in my view, the child should not be subjected to what may ultimately be two unnecessary disruptions to his life.

5. The child expressed some anxiety to the family report writer about relocating to Country C and he presented as somewhat anxious when he was assessed.

6. It is a big thing in a child’s life to commence high school and I do not consider it to be in the child’s best interests for him to miss the start of high school in Australia.

7. If the appeal is successful he will of course have to manage the transition at that time but, in my view, he should not be put through such a transition unnecessarily.

8. The balance of convenience favours the child returning to Australia as envisaged by the December 2017 order, pending the determination of the appeal.

9. Accordingly I propose to dismiss the application for a stay.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 16 January 2018.

Associate:

Date: 16/01/2018