Langley and Bramble (No. 2)

[2008] FamCA 711

FAMILY COURT OF AUSTRALIA

LANGLEY & BRAMBLE (NO. 2) [2008] FamCA 711

FAMILY LAW – COSTS
FAMILY LAW – STAY APPLICATION

Family Law Act 1975 (Cth)

APPLICANT: Ms Langley

RESPONDENT: Mr Bramble

FILE NUMBER: PAF 370 of 2006

DATE DELIVERED: 7 August 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 7 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schroder

SOLICITOR FOR THE APPLICANT: Lamrocks

SOLICITOR FOR THE RESPONDENT: Claire Legal

Orders

1. Pursuant to order 8 of the orders made 16 June 2008, changeover for the child is to take place at:-

   1.1.McDonalds at HL when the mother is travelling by motor vehicle;

   1.2.McDonalds at MD when the mother does not have a motor vehicle and travels by train.

2. The mother forthwith provide to the father written notice as to how she initially intends to travel so that she specifies to the father whether the changeover will be McDonalds at HL or McDonalds at MD and further provide to the father notice of any change to her method of transportation and the changeover venue at least 7 days before the change.

3. The husband pay 10 percent of the wife’s costs from 19 to 22 May 2008 on a party/party basis.

4. The mother’s application for a stay of Orders dated 16 June 2008 be dismissed. 

IT IS NOTED that publication of this judgment under the pseudonym Langley & Bramble is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAF 370 of 2006

MS LANGLEY

Applicant

And

MR BRAMBLE

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Changeover venue

1. An issue has arisen between the parties in respect of the location of a changeover venue.

2. On 16 June 2008 I made the following orders:-

   (8)  At any time when [the child] is to go from one parent to another, changeover for [the child] is to take place during the period provided for in Order 6 above, at the Central West Contact Service, and thereafter at times provided in Order 7, at a McDonald's at a reasonably equal distance from the home of both parents.

   (9)  In the event the parties are unable to agree on which venue is appropriate, then either party shall be at liberty to apply on seven days notice for a determination about the matter. 

3. The father, in a response filed in Court today has sought an order that, pursuant to Order 8, changeover take place at McDonalds at HL when the mother has a motor vehicle, and at McDonalds at MD when the mother does not have a motor vehicle and travels by train. 

4. The evidence that I have in the father's affidavit sworn on 6 August 2008, and filed in Court today, in paragraph 31, is that HL is, by car, 23.5 kilometres from the mother's home and 28.3 kilometres from the father's home.  Exhibit AA, which is a document provided by the mother today, does not specify how far HL is from both homes so I accept the father's evidence in that regard. 

5. Based on the father's evidence in paragraph 31, HL McDonalds is the McDonalds which is more equi-distant than the others in the event that the mother is travelling by a motor vehicle. 

6. In the event that the mother is travelling by train, there are two possible options.  The first is McDonalds at TH.  The second is McDonalds at MD.  The mother wishes, or seeks some variation of Order 8, by removing the requirement for changeover to be at a McDonalds and inserting TH Railway Station.  That, however, would be a variation of the order that I made and I have insufficient evidence to embark upon a Rice & Asplund exercise to substantially vary Order 8.

7. I have evidence in paragraph 29 of the father's affidavit, which is not disputed, that the McDonalds at TH, which is in a Shopping Centre, closes at 4 pm on Sunday afternoon and therefore is not available as a changeover venue at the time specified in Order 7.  That, unfortunately, eliminates TH as a possible venue and leaves only MD as a possible venue in the event that the mother is travelling by train. 

8. It follows therefore that the application sought by the father must succeed in relation to changeover venue and I shall make orders accordingly. 

9. I shall also require the mother to inform the father as to how she intends to travel to changeover from time to time. 

COSTS APPLICATION

1. The wife in this case, by way of application in a case filed on 14 July 2008, seeks an order that the husband pay the wife's costs of the property settlement proceedings. S 117(1) of the Family Law Act (“FLA”) provides a general rule that each party should bear his or her own costs. S 117(2) FLA requires the Court to make an order in relation to costs that it considers just when considering the matters in s 117(2)A FLA.

2. The essence of the orders made by me on 16 June 2008 was that the husband transfer to the wife his interest in the matrimonial home on the basis that the wife pay to the husband an amount of $50,091.  The hearing of the matter before me took place on 19th, 20th, 21st and 22 May 2008.  The focus of that four day hearing was primarily on what parenting orders would be made in relation to the child.  I estimate that the amount of the four days that was spent dealing with issues in respect of property was about 15 per cent. 

3. The wife has filed an affidavit by her solicitor, Ms Schrale, sworn on 14 July 2008 which annexes a letter that Ms Schrale wrote to Claire Legal on 14 May 2008.  That letter offers to settle the property on the basis that the wife pay to the husband an amount of $50,000.  The offer was considered promptly and the offer was not accepted.  That is clear from the letter from Claire Legal Pty Limited dated 16 May 2008.  Had the offer been accepted, there would not have been the need to ventilate issues in relation to property at the hearing.  In respect of the central issue in the property case, the wife was successful in achieving the result that was, for all intent and purposes, identical with the offer that she made in the letter of 14 May 2008. 

4. There were two issues in the property matter in respect of which the wife was not successful.  The first was her application that the dog be returned to her as part of the overall adjustment of property.  The second was in relation to the return of chattels.  Counsel for the mother has made the point that the later claim was not significantly pressed given that the wife led no evidence to support that application. 

5. In responding to the offer, the solicitor for the husband wrote that no consideration of the offer could be made until the result of the parenting application was known but a proper analysis of the factual underpinnings of the property case would have meant that, even on the assumption that the child would ordinarily reside with the father, the offer made by the wife should have been accepted.

6. In relation to the other matters that I am required to consider under s 117(2)A FLA, the financial circumstances of each of the parties is adequately covered in my reasons of 16 June 2008. The other matters in s 117(2A) FLA are not of any significant relevance to my determination of this matter.

7. I bear in mind the result of the main litigation about the child.  I bear in mind the fact that the wife was not successful in relation to the part of her application that dealt with the dog.  I think it is appropriate, however, that the wife should be allowed, on a party/party basis, to recover ten per cent of the costs incurred by her from 19th to 22 May 2008.  I make an order accordingly.

STAY APPLICATION

1. The mother, by way of an application filed on 24 July 2008, seeks a stay of parenting orders made by me on 16 June 2008, and specifically Orders 3, 4, 5 and 6 - 9, although it appears that the stay in relation to order 6 would not have any effect, given that those orders have now been put into effect by both of the parties over the last seven weeks.  I have dealt with the matters in relation to Orders 8 and 9 but they would be stayed on the basis that the mother is seeking other orders conditional upon the stay in relation to changeover.

2. The orders that I made on 16 June 2008 relate to the child who was born in March 2005 and who is about three and a half years of age.  The effect of Order 6 was to gradually increase the amount of time the child would spend with her father, until such time as the child was spending all of the time each fortnight with the father, apart from each alternate weekend from 6 pm Friday to 6 pm Sunday during school terms. 

The law applicable to a stay of a parenting order pending an appeal

1. The FullCourt in EJK & TSL (No. 2) [2006] 35 Fam LR 590 quoted, with approval, Nygh J’s comments in Clemett and Kirby J’s comments in JRN & KEN v IEG & BLG (1998) in the following terms:

   16.  It facilitates our discussion to set out the principles espoused in Clemett and Clemett (supra) to which we have already referred. At 76,175 Nygh J said:

   ‘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 within a reasonable time 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. In this case we are satisfied that the appellant is appealing seriously on the merits of the case, that an appeal can be (and has in fact been) expedited within a reasonable time and that the child is properly looked after by the father. There is no indication that his Honour gave any consideration to those matters. If his Honour did, we are of the view he did not give sufficient consideration to them. For those reasons, we are of the view that his Honour exercised his discretion wrongly and consequently that the appeal should be upheld.’

   17. Although we note that this decision pre-dates the Family Law Reform Act 1995 (Cth) when the whole of Part VII of the Family Law Act 1975 (Cth) (‘the Act’) was subject to ‘the best interests test’, we accept the principles espoused are relevant to this application, and the child’s best interests, even if not the paramount consideration, on the facts of this case are a significant consideration. The importance of the consequences for a child of granting or refusing a stay are well recognised. In JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332 Kirby J said:

   ‘In my opinion, some adaptation of the rules stated in the cases governing stays in this Court must also occur in 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.’

2. Counsel for the mother has emphasised in his submissions that, as a condition of granting the stay, the mother is agreeing to an amendment of the order that was in existence at the date of the final hearing.  That order was that the child only see her father for a short period each week.  The mother's concession would mean that the child would spend each weekend from Friday 5 pm until Sunday 4 pm with her father. 

Is the appeal based on substantial grounds?

1. The appeal from reasons for judgment in a case of this nature, a discretionary judgment, and the limits on the ability for an Appeal Court to interfere with it are well known (see House v King (1936) 55 CLR 499 and Gronow v Gronow (1979) FLC 90-716).

2. The mother has filed an affidavit sworn on 24 July 2008.  The affidavit annexes a copy of the notice of appeal against the parenting orders that I have made on 16 June 2008.  That notice was filed in the Full Court on 10 July 2008.  The grounds of appeal, two through to seven, whilst reserving the position to file amended grounds, all assert errors resulting from insufficient weight being placed on particular parts of the evidence. 

3. The appeal does not allege that the result that I ordered was outside a range of discretion, that there was any error of law, that there was any error of fact, that there was a lack of adequate reasons, that there was any denial of natural justice or that there was any actual or apprehended bias.  This is an appeal in a parenting case which, as currently drawn, is based upon a complaint about how evidence was weighed and, as such, in my view, it would be difficult to sustain as currently drawn and I conclude that as currently drawn it cannot be said to demonstrate substantial grounds of appeal. 

Can the appeal be dealt with within a reasonable time?

1. It is a matter of agreement that on best case scenario the Full Court would not deal with this appeal until the February 2009 sittings.  There will then normally be a period in which the Full Court would reserve their judgment.  Consequently, anything that I do today, by way of staying my orders, would be something that would probably be putting in place an arrangement that would be good until somewhere towards the middle of next year.  There has been no application by the mother for expedition of the appeal. 

Are the present circumstances of the child satisfactory?

1. In K & B (2006) FLC 93-288 the Full Court, when considering the question of relevance of status quo and the exercise of discretion when considering a stay in children's cases, dealt with the previous statement of Ellis J in Wilson & Wilson (unreported 10 October 1996).  At paragraph 32 they said:

   "...the interests of children would not be promoted by an inflexible requirement of presumption in every case to maintain a status quo prior to the making of orders subject of a stay application and to ignore unsatisfactory arrangements at the time of the orders". 

2. The mother argues that the child’s anticipated short term discomfort should mean that the current arrangements as ordered should be reversed, and she relies in that regard on what is in her affidavit which is sworn on 24 July 2008. 

3. At paragraph 19 the mother opines that the child is having difficulties adjusting to substantial changes in her care arrangements and she believes that changes need to be undertaken more slowly to allow her time to adjust.  And in paragraph 26 she repeats that view, that is, that the child needs more time to adjust to the changes in the care arrangement.  The mother, in her affidavit, gives evidence about what she says is disturbed behaviour in the child, including clinginess, anxiety, difficulties in sleeping, nightmares, night-terrors and regression to more babyish behaviour. 

4. The mother also says that the child’s expressed views since the orders were implemented is further evidence of the disturbance she is feeling.  The mother gives evidence that the child has not worn nappies during the day since November 2007 when she was toilet trained and the mother says that the child has urinated in her pants on 10 occasions and associates the majority of those occasions with occasions when she has either spent time with her father or there has been a reference in the child’s presence to spending more time with her father.  Paragraph 16 of her affidavit deposes to the fact that she suggested to the child that if she saw her dad every weekend "I believe you would be happier".

5. I indicated in my reasons that one of the most difficult things I had to consider in making the judgment that I did, was the effect of the change that the orders would bring about on the child who was a three year old girl who had a primary attachment to her mother.  I was mindful when I did it (and I expressed this in the reasons), that it would cause the child some short term pain.  Part of that transition period has now happened.  Multiple changes to children's situations should be avoided if possible.  Counsel for the mother rightly points out that we are now at a point in time in the orders where the child will go from being with her father 10 days a fortnight to being with him for 12 days a fortnight.  I have already noted that on the mother's proposal in respect of the stay, a condition of the stay that she is conceding is that the child would see her father for each weekend (that would be only four nights a fortnight).

6. The mother has not really explained why she waited from 16 June to 24 July to file a stay application.  The effect of that delay has meant that much of the short-term pain that was anticipated that the child would suffer in the transition period has now happened, although as I said at paragraph 208 of the judgment; it should not be assumed that the effect of the change on the child will be ameliorated only after the short time anticipated by the father of being a couple of months. 

7. It could well be that the mother is accurately describing the anguish that the child is currently feeling.  Having made the findings I have however I am less than certain that the child’s reaction (if in fact the mother is accurately describing it) is primarily a function of the child spending more time with her father.  Given my findings as to the mother’s mental status I infer that the mother’s reaction to the orders that I have made is playing a part in the reaction that the child is having or is affected the way the mother is reporting that reaction.  I have regard particularly to observations that I have referred to at paragraphs 190 and 194 made by Dr A when seeing the child first with her mother and then with her father and Ms M

8. Dr A in fact observed the child with her mother and recorded that there were moments of warmth between them, but he observed that the mother spoke to the child in an abrupt tone and was frustrated with the child’s aggression which she struggled to control.  The doctor expressed concerns about the mother's interaction with the child and commented that she had difficulty managing the child who became aggressive and provocative.  I do not accept that the mother's observation contained in her most recent affidavit about the child’s aggression at church is necessarily an isolated event, or an event that is necessarily connected with the change in the child’s circumstances. 

9. On the other hand, the father's evidence of the child whilst with him in the affidavit, that he has filed in support of his opposition to the stay application, is consistent with observations made by Dr A as to the close attachment between the child and her father and the interactions that I have more fully described at paragraphs 193 and 194 of my judgment.  I am less than certain that the child’s reaction, if in fact the mother is accurately describing it in her household at the current time, is primarily a function of the child spending more time with her father.  Given my findings as to the mother's mental status, I infer that the mother's reaction to the orders that I have made is playing some part in the behaviour that the child is exhibiting in her household. 

10. In my reasons for judgment I reached the following conclusions: 

    32.1That there has been no systemic violence by the father and there is no general tendency for him to be violent (judgment paragraph 232). 

    32.2There is no unacceptable risk that the husband has sexually abused the child or exposed the child to adult sexual activities (judgment paragraph 147). 

    32.3It is more likely than not that the wife had fabricated sexual abuse allegations against the father (judgment paragraph 147). 

    32.4That the mother has a delusional disorder or a personality disorder (judgment paragraph 178). 

    32.5That as a result of the wife's mental status there is an unacceptable risk that, if the child remains living primarily with her, the hcild will not have the benefit of a meaningful relationship with her father (judgment paragraph 188).  One of the grounds of appeal is that I placed weight on the evidence of Dr A as to the mental condition of the mother and haven't placed sufficient weight on the evidence of Dr O in that regard.  As I have said in my judgment however, had I had to make a judgment as to the mother's mental status based on Dr O’s evidence alone, I would have concluded that the mother had a personality disorder (judgment paragraph 161). 

1. I conclude on the facts of this case that there are significant matters going to what is in the child’s best interest that point towards not making an order for a stay.  

Does a refusal of a stay render a successful appeal nugatory?

1. In the event that the mother's appeal was successful, and on a re-exercise of discretion by the Full Court, or on a re-hearing, the child is ordered to ordinarily live with the mother, then I acknowledge that it is likely to cause some disruption to the child.  That however does not mean that the stay application would render a successful appeal nugatory.  That potential disruption must be weighed against my view of the likelihood of the success of the appeal and the risks to the child, if I allow what could be a relatively long period with her mother in circumstances where I have made findings in respect of the mother's mental status, and findings that the mother poses an unacceptable risk to the child developing a meaningful relationship with her father. 

2. At the child’s age, the delay of having the Full Court deal with this matter to completion of a delivery of judgment is something I have to weigh when analysing what is in the child’s best interests. 

Hardship

1. Hardship suffered by either parent as a result of grant or refusal to grant a stay is not a matter of great relevance in this case.  It is the hardship that the child will suffer that is most important. 

Conclusions

1. My conclusions are that no significant hardship will be suffered by the mother if the stay is refused. 

2. I do not consider the appeal is based on substantial grounds. 

3. The refusal of the application for stay does not render a successful appeal nugatory. 

4. I conclude that the child’s best interests will be promoted by having her remain with her father for most of the time until the appeal is heard and determined. 

I certify that the preceding forty-two (42) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts

Associate: 

Date: 25.8.2008