Lenard and Rogers
[2012] FamCA 600
•20 July 2012
FAMILY COURT OF AUSTRALIA
| LENARD & ROGERS | [2012] FamCA 600 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings – where the wife seeks a stay of proceedings pending her appeal regarding parenting orders that the children no longer live with the wife and instead live with the father – where the court has power to determine a stay when the appeal is not yet filed – where the stay would likely be for a long period of time – where the change from one parenting regime to the other is not so disruptive on the children so as to warrant granting a stay. |
| Family Law Rules 2004 (Cth) r 22.11(2) |
| K & B [2006] FamCA 848 Sheldon & Weir (No 4) [2010] FamCA 1214 Trahn & Long (No. 2) [2008] FamCAFC 194 |
| APPLICANT: | Ms Lenard |
| RESPONDENT: | Mr Rogers |
| FILE NUMBER: | SYC | 1585 | of | 2010 |
| DATE DELIVERED: | 20 July 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | 18 July 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Battley |
| COUNSEL FOR THE RESPONDENT: | Mr Siggins |
| SOLICITOR FOR THE RESPONDENT: | Sweeney Tiggemann |
Orders
That the application for a stay of Orders made 16 July 2012, pending determination of an appeal, be refused.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rogers & Lenard has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 1585 of 2010
| Ms Lenard |
Applicant
And
| Mr Rogers |
Respondent
REASONS FOR JUDGMENT
Before the Court is an application to stay the operation of orders which were made on 16 July 2012, at the conclusion of a defended hearing relating to parenting and property settlement.
The effect of the orders in relation to parenting was to change the parenting arrangements of the children who had previously lived with their mother, so that they would in future live with their father and spend five days each fortnight with their mother.
The orders in relation to property settlement made an adjustment pursuant to section 75(2) which recognised the parenting arrangements.
When the matter came before the Court for argument, the mother’s appeal had not been filed but I was provided with a Notice of Appeal which she intended to file. Counsel for the husband objected to the hearing of the application for a stay on the basis of rule 22.11(2) of the Family Law Rules 2004 (Cth) which provides that:
If an appeal has been started or a party has applied for leave to appeal against an order, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application relates.
Counsel acknowledged that the Court was able to dispense with compliance with the rule but nevertheless submitted that the Court would not deal with the application because the appeal had not been filed.
Ryan J dealt with the issue of the Court’s power to stay an order prior to the lodgement of an appeal in a decision of Sheldon and Weir (No 4) [2010] FamCA 1214 where her Honour said:
28. A question which thus requires consideration is the Court’s power to order a stay absent an appeal. By r22.11(2), a party may apply for an order staying the operation of orders if an appeal has been started. Rule 1.12 enables the Court to dispense with the rules. The factors relevant to dispensation include, per r 1.12(3) the following:
(3)In considering whether to make an order under this rule, the court may consider:
(a) the main purpose of these Rules (see rule 1.04);
(b) the administration of justice;
(c) whether the application has been promptly made;
(d) whether non-compliance was intentional; and
(e)the effect that granting relief would have on each party and parties to other cases in the court.
29. Rule 1.04 provides that the main purpose of the rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the Court that is reasonable in the circumstances of the case.
30. The father applies for the Court to dispense with r 22.11(2). His point being there would then be no impediment to the determination of his stay application notwithstanding he has not filed a notice of appeal. However, unless there is an underlying power to determine a stay application without an appeal having been filed, dispensation with the rules, would not suffice. In his article, ‘Interlocutory Orders Pending High Court’ (1995) 13 ABR 45, J Daley noted [t]he creation of a jurisdiction by an as yet non-existent appeal is practical, even if it is theoretically curious. It is justifiable only if the applicant has undertaken to institute and prosecute High Court proceedings forthwith’.
31. In Erinford Properties Limited & Cheshire County Council [1974] Ch 261 Megarry J granted a stay before an appeal was filed. In that case, he recited a long line of authority, which held ‘when there is an appeal about to be prosecuted, the litigation is to be considered as not at an end … That applies … just as much to the case where the action has been dismissed’. The principles enunciated in Erinford Properties Ltd & Cheshire County Council were approved by Toohey J in Paringa Mining & Exploration Co plc v North Flinders Mines Ltd and Others (1988) 81 ALR 501 at 506.
32. This line of authority would support the Court concluding that as the time for lodgement of an appeal has not expired and the father has informed the Court it is intention to appeal, there is jurisdiction to determine his stay application. If it was considered dispensation of r 22.11(2) would nonetheless be insufficient, regard could be had to r 1.09 to address a lacuna in the rules. Rule 1.09 provides if the Court is satisfied that:
(a)a legislative provision does not provide a practise or procedure; or
(b)a difficulty arises, or doubt exists, in relation to a matter of practice or procedure; it may make such orders as it considers necessary.
33. In the alternative, if there is any doubt about the creation of jurisdiction by a non-existent appeal during the appeal period, as an incident of the Court’s inherent jurisdiction, there is power to determine this application. Support for this proposition can be found in De Lewinski v Director General, New South Wales Department of Community Services (1996) FLC 92-678. Before the Court in De Lewinski was an application to stay orders made by the Full Court of this Court in Abduction Convention proceedings. An application for special leave to the High Court had not yet been instituted. Gummow J determined the Full Court erred in refusing a stay, even though the application for special leave to appeal had not been instituted. In his judgment, his Honour stated “Important for the administration of justice”. So that it is clear it was accepted that although an application for special leave to appeal to the High Court had not been filed, jurisdiction existed in both the Full Court and the High Court to stay the orders made by the Full Court.
The court has power to determine a stay where the appeal is not yet filed.
In the present case the wife has prepared the Notice of Appeal and the grounds of appeal are available for comment.
I dispense with strict compliance with rule 22.11(2) and allow the application for the stay to proceed.
In relation to the application for the stay, the Full Court in Trahn & Long (No. 2) 2008 FamCAFC 194 said:
38. These principles, both in the general law and in respect of parenting proceedings, are well settled (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (1986) 160 CLR 220 at 230; Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685. Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; Clemett and Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter included the following:
· 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 “special” or “exceptional” circumstances;
· a person who has obtained a judgment is entitled to the benefit of that judgment;
· the person who has obtained a judgment is entitled to presume the judgment is correct;
· the mere filing of an appeal is insufficient to ground 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 the 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 a stay for a short period of time; and
· the best interests of the child the subject of the proceedings.
The stay is not ordered as a matter of right and the onus is upon the applicant for the stay, in this case the mother, to establish the proper basis.
The Notice of Appeal which has been prepared for filing on behalf of the mother contains only two grounds of an appeal:
1.That the learned Trial Judge erred in finding that the mother had not facilitated the children spending time with the father despite the mother’s strict compliance with orders.
2.That the learned Trail Judge erred in giving no weight to the expert’s primary recommendation that the children live with the mother.
In relation to the first ground, the reasons make it clear that it is the mother’s willingness to encourage and facilitate the children’s relationship with the father that is the relevant consideration, not her strict compliance with orders.
I am conscious that there may be further grounds added after a fuller consideration of the reasons but, as presently framed, they are unlikely to attract appellate intervention.
None of the grounds of appeal deals with the property orders, although it was made clear by Counsel appearing for the mother that it was the Section 75(2) adjustment that she would seek to revisit, in the event that her appeal was successful.
Counsel for the wife was unable to give any indication of the likely time frame in which the appeal could be dealt with. Because of the heavy burden of work in the appeals division of the Court it is inevitable that there would be some delay in the hearing and disposition of an appeal. There was no indication on behalf of the mother that she would apply for expedition but even in the event that expedition were applied for, and granted, there would nevertheless be a delay. In the event that the appeal is successful and the matter is remitted for re-hearing, there will be a further passing of time while the matter is re-heard and determined. I cannot assume, consistently with the principles set out in Truong and Liu that the stay would be for “a short period of time”.
It is submitted on behalf of the mother that the appeal would be rendered nugatory if the stay is not granted. I do not accept that submission. If a stay is not granted the children will reside with their father and spend time with their mother for five nights each fortnight. The mother proposes that if a stay were granted the children would spend five nights a fortnight with their father. In the event that the appeal is successful and the matter proceeds to rehearing and the wife is successful on rehearing then the children will reside with her and spend substantial and significant time with their father.
While it is acknowledged that it is desirable to limit the frequency of any change to the children’s living arrangements it is likely that a substantial period of time will elapse between the filing of the appeal and the ultimate determination of any rehearing even if the appeal were expedited. In the circumstances where the parties live in relative geographic proximity, and the children will not be required to change schools, the disruption caused by a change in their living arrangements could be minimised. The children will either spend five nights each fortnight with their mother or five nights each fortnight with their father. They will stay in the same school. The unchallenged evidence of the expert was that they had “a very close and loving relationship with both parents” and that “the closeness with both parents was equal”. I do not consider the change from one regime to the other to be so disruptive as to warrant granting a stay.
In K and B [2006] FamCA 848 the Full Court considering the principles applicable in relation to an application for a stay said at paragraph 32:
The granting of refusal of a stay involves an exercise of discretion by a Trial Judge whilst such discretion must be exercised judicially in cases involving children, we accept that from time-to-time circumstances in existence at the date of the orders, or which occur from the date of the orders until the hearing of a stay application, may be very relevant matters to be considered in the exercise of discretion in determining whether or not to grant a stay. The interests of children would not be promoted by an inflexible arrangement or presumption in every case to maintain the status quo prior to the making of orders the subject of the stay application, and to ignore unsatisfactory arrangements at the time of the orders, or significant events which have occurred after the making of those orders.
In the present case the wife herself, in her affidavit in support of the application for a stay, points to the fact that the father had spent relatively little time with the children since February 2009. The difficulties which the father encountered in spending time with the children constituted a significant portion of the judgment, and of the reasons for the decision to change the living arrangements for the children. The arrangements for the children, and particularly for the facilitation of their relationship with their father, were unsatisfactory at the date of judgment and at the time of the application for a stay.
The granting of the stay pending appeal is an exercise of the Court’s inherent power. The exercise of the inherent power is to be distinguished from the exercise of jurisdiction under Part VII. A stay cannot be categorised as a parenting order and it follows that the best interests principle is not the paramount consideration although there is no doubt that the best interests of the children may be highly relevant in determining whether or not to grant a stay.
I have already determined that the children’s best interests dictate that they should live primarily with their father. None of the matters relied upon by the wife in her application for a stay persuades me that those orders should not be put into effect and the application will be refused.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 20 July 2012.
Associate:
Date: 20 July 2012