Lockley and Bardot (Stay Application)
[2016] FCCA 2210
•26 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LOCKLEY & BARDOT (Stay Application) | [2016] FCCA 2210 |
| Catchwords: FAMILY LAW – Stay application – basic principles – significant history of litigation between the parties – issues raised by Mother in relation to the Father’s mental health dealt with at trial but for which there was no relevant evidentiary basis – Mother’s significant inability to accept medical and other specialist evidence confirming that there was no risk to the child spending time with the Father – strong evidence of the Mother and child being in an “enmeshed relationship” that involves a “separation dynamic” – evidence of the child being “conditioned” by the Mother adversely to the child’s relationship with the Father – the granting of a stay of the change in residence Orders not in the child’s best interests – Mother’s significant history of non-compliance and failure to encourage the child’s relationship with the Father. |
| Legislation: Family Law Act 1975 (Cth), s.45 Federal Circuit Court Rules 2001, r.29.04 |
| Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 |
| Applicant: | MS LOCKLEY |
| Respondent: | MR BARDOT |
| File Number: | SYC 8874 of 2007 |
| Judgment of: | Judge Neville |
| Hearing date: | 18 July 2016 |
| Date of Last Submission: | 5 August 2016 |
| Delivered at: | Canberra |
| Delivered on: | 26 August 2016 |
REPRESENTATION
| Solicitor/Advocate for the Applicant: | Ms M Gray |
| Solicitors for the Applicant: | Legal Aid NSW |
| Counsel for the Respondent: | Mr N Jackson |
| Solicitors for the Respondent: | McCabe Partners Lawyers, Caringbah |
| Counsel for the Independent Children's Lawyer: | Mr C Cook |
| Solicitors for the Independent Children's Lawyer: | S P Nasti & Co, Drummoyne |
ORDERS
The Mother’s Amended Application, filed 5th August 2016, seeking, among other things, a stay of the Orders made on 30th June 2016, be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Lockley & Bardot (Stay Application) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
SYC 8874 of 2007
| MS LOCKLEY |
Applicant
And
| MR BARDOT |
Respondent
REASONS FOR JUDGMENT
Introduction
On 30th June, after a three day hearing, this Court made Orders that provided for the 8 year old child of the relationship, X, to live with his Father and to spend regular time with his Mother.
By an Amended Application, filed 5th August 2016, the Mother seeks, among other things, a stay of those Orders - which required that there be a change in the child’s primary residence to that of the Father.[1]
[1] The principal judgment is Lockley & Bardot [2016] FCCA 1982.
For the reasons that follow the Mother’s Application for a stay should be refused. Among a number of reasons for such an Order, in the light of the extensive evidence at trial, including in particular the expert evidence of Dr R (which was consistent with the unchallenged evidence of the Family Consultant, Ms L), the longer that X remains with his Mother and therefore remains in an enmeshed relationship that is characterised by (a) “a separation dynamic” and (b) the child being conditioned by the Mother adversely to the Father, the greater the risk to the Father/child relationship and doubtless too to his general development.
Outline of Principle in relation to Stay Applications
For current purposes, I note the following (also noted by the Mother in her submissions) from the Full Court’s decision in Aldrige & Keaton (Stay Appeal).[2] At [17] – [18], the Court said (emphasis added):
[2] Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106. For a more recent discussion, but no formal ruling, by a differently constituted Full Court (Thackray, Ainslie-Wallace & Murphy JJ) of stay applications, where Aldridge & Keaton (Stay Appeal) was distinguished but the comments of Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681 were further considered, see Anderson v Senior (Stay Appeal) (2013) 279 FLR 399; (2014) 50 Fam LR 21 at [35], [36], [37] and [38]. See also the comments of the Full Court (Warnick, Boland & May JJ) in K & B (2006) FLC ¶93-288.
[17] This is an appeal from a discretionary judgment. There are well established principles on the limits on interference by an appellate court with such a judgment (see House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716).
[18] The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; Clemett & 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 include 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 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.
Mother’s Grounds of Appeal & Submissions
Shortly after the Court’s detailed oral reasons were delivered and Orders pronounced on 30th June, the Mother’s then solicitor withdrew.
The Mother filed an Application in a Case (and supporting affidavit) on 5th July. Summarily, she sought Orders that she have sole parental responsibility for X and a stay of the Orders made by the Court on 30th June.
In her supporting affidavit, the then self-represented Mother deposed that X still believed that his Father had committed four acts of violence that were set out in the Court’s reasons, based on the Mother’s affidavit, filed 30th October 2014.
In the course of its reasons, the Court held, based on the lack of evidence generally and in particular the assessment made by Dr R (plus other evidence set out in the Court’s reasons) that the incidents complained of by X had either not occurred, and or that they had been exaggerated, and or that they had been relevantly explained.
The Court also noted in its extensive reasons the evidence from Dr R in relation to the enmeshed relationship between Mother and son and how she has “conditioned” X in relation to the events complained of by him and in relation to X’s alleged concerns about spending time with his Father.
The Mother’s affidavit also outlined her wish for the Court to re-consider the decision to give sole parental responsibility to the Father (the Mother refers to it as “sole custody” but I have interpreted it as intending to refer to parental responsibility). Likewise, she sought the Court to re-consider the recommendations of Dr R.
The Mother’s Notice of Appeal, filed 25th July 2016, lists eight (8) grounds of appeal. Summarised they are as follows:[3]
(a)Ground 1 contends that the Court failed to give adequate reasons for the Orders made on 30th June 2016;
(b)All of the remaining grounds refer to the Court either “failing to give sufficient weight” or in one instance, giving “undue weight” to the evidence before the Court.
[3] The Notice of Appeal refers to the matter being an appeal from the “Family Court of Australia”; and the Mother seeks to have the matter remitted to the Family Court for re-hearing in that Court. Although the Mother confirmed that she was receiving, albeit informally at the time, some legal assistance – and the style of the grounds of the appeal certainly confirm this, nonetheless I put such obvious errors in relation to the Court in which the matter was heard, and the Court who should re-hear the matter in the event that the appeal was successful, down to the Mother being self-represented at the time of lodging the appeal. A Notice of Address for Service on her behalf was filed by NSW Legal Aid on 8th August 2016.
Again in general terms, the contentions in relation to the Court not giving sufficient weight to certain evidence or statutory considerations may be summarised as concerning:
(a)The weight given to the child’s views (Ground 3);
(b)The consideration of matters relating to domestic violence (Grounds 2, 7 and 8);
(c)The consideration of the parents’ respective parenting capacities and engagements (or lack of them) with the child (Grounds 4, 5 and 6).
Excluding references to lists of documents, citations and some paragraphs that had been “struck through” as no longer relevant, the Mother’s submissions were as follows:[4]
[4] As may be inferred from earlier comments in these reasons, the Mother now is represented by Legal Aid NSW, and it is that office that prepared the Mother’s detailed written submissions.
1) The matters the Court must consider in determining a stay application are now well settled. (See: Trahn and Long (No. 2) [2008] Fam CAFC 194; Aldridge & Keaton [2009] FamCAFC 106 and Blakely & Morrell (No. 2) [2014] FamCAFC226). Particular factors relevant to this application (highlighted in bold) are dealt with below:
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.
2) The bases for the stay relied upon by the mother include the effect on the child of the proposed drastic change in residence in circumstances where the psychological effect on this particular child of a change in residence, where that change may be temporary pending the outcome of the Mother’s Appeal.
The bona fides of the Applicant
3) The Applicant Mother’s appeal is based on substantial grounds and is not a mere delaying tactic. To demonstrate that her Application is bona fide, she has agreed for the child to spend unsupervised, overnight time with the Respondent Father on 23 July 2016 and will agree to this time continuing on a fortnightly basis.
A stay may be granted on terms that are fair to all parties
4) As outlined above, the Mother has agreed to the child spending time with the Father and seeks Orders in her Application for Appeal for that time to be regular. The Mother submits that arrangement is fair to all parties in circumstances where the child has had little relationship with the Father at all up to this point. The hardship that would be occasioned by not granting the stay would fall squarely upon X.
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
5) If the Orders of 30 June 2016 are not stayed, then X will be required to change residence from his mother’s care, with whom he has lived for his whole life, to his father’s, with whom he has spent minimal time to date. The emotional and psychological harm that could ensue during the period between the date of the Orders and the appeal may prove to be both long lasting and irreversible. Accordingly, unless the Orders are stayed pending the determination of the appeal, then by the time the appeal is heard and should the mother be successful, the emotional and psychological damage to X will have occurred thus rendering the appeal and any positive outcome nugatory. This will be a substantial factor in determining whether it will be appropriate to grant a stay.
The desirability of limiting the frequency of any change in a child’s living arrangements
6) The risk in this case is that the effect of not granting a stay could lead to a situation where the child moves from the Mother’s care to the Father’s care pursuant to the Orders made 30 June 2016, and then is placed back into the care of the Mother pursuant to Orders if the appeal is successful. The Full Court has stated in CSN and JBN (1998) FamCA 1766 that “this would clearly be a situation which would be undesirable and could be avoided” [12], citing the Full Court in Clemett (1981) FLC 91-031 which said:
“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.”
7) The child remains living with the Mother, who now again resides in the (omitted) of Sydney as foreshadowed in her Affidavit of 22 June 2016. The child has commenced spending time with the Father. It is the Mother’s submission that it is not in the child’s best interests to be uprooted from the familiar environment with his mother and placed in an unfamiliar household with the Father, to whom he has little or no attachment.
8) It is respectfully submitted that X’s current circumstances – in the full time care of the mother since birth – are not the subject of criticism by Ms L or Dr R. Accordingly, X’s current circumstances should not cause the Court any concern should a stay be granted as X’s immediate best interests are those that have existed for the whole of his life. Should the Family Court grant the mother’s appeal, and the final determination of the parties’ competing proposals for parenting Orders fail to change the long-standing status quo, then any change at this stage, which may later be reversed, would not be in X’s best interests.
Some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case
9) It is respectfully submitted that the mother’s grounds of appeal identify valid and substantial errors of law and are not merely based on discretion.
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;
10) The Mother’s Amended Appeal has just recently been lodged. The Court does not give an immediate return date or a projected hearing date for the appeal. The Court can, and should, assume that the mother will prosecute her appeal in a timely manner such that the Court will have confidence that the timing of the appeal will largely be a matter for the Family Court rather than the parties or any one of them. The Mother has sought expedition of her appeal. Meantime, she has made arrangements for the child to spent overnight time with the Father, and for her and the child to attend upon counselling as recommended by Dr R at recommendation 7 [page 24] of his report to address the concerns raised in that report. In short, the mother contends that if there is a delay in the appeal, the delay is not of her making, nor would there be any adverse effect on X’s wellbeing emanating from any delay.
The best interests of the child the subject of the proceedings are a significant consideration
11) The Family Report of Ms L suggested that the Mother is the child’s “primary, and possibly, only attachment figure” [20]. It is the Mother’s submission that removing the child from her care on a temporary basis pending the outcome of Appeal, would be psychologically detrimental to him.
12) At paragraph 3 of the Expert Report of Dr R suggests that a change in residence would be “an enormous change for [the child]” which he would find “extraordinarily difficult.” The Family Report of Ms L suggests that X is shy, timid and lacking in confidence, and a change to spending substantial and significant time with the Father in 2014 would have been “emotionally challenging for him” [57]. It is the mother’s evidence that X is a very sensitive child and that any separation from her would be detrimental to his health, wellbeing and development [Affidavit of Mother, filed 5 July 2016, paragraphs 11 and 12]. In the event that the Mother’s Appeal is successful and there is a “flip-flop” of residence, that situation would be particularly difficult for this child, and the comments in Clemett’s case (above) should be considered.
13) The child is 8 years of age. He has expressed a view to the Expert, Dr R that he does not wish to live with the Father. The child has lived with the Mother since birth. The Expert Report of Dr R suggests that the child is well cared for by the Mother and that she is, overall, a “capable caring parent” and the child is “developing well in her care.” It is the mother’s evidence that X is a “healthy, happy, well-adjusted child” who feels “safe and secure” with her [Affidavit of Mother, filed 5 July 2016, paragraph 12]. Certainly, that His Honour made no “quarantine” Orders in the transition of the child from the Mother’s residence to the Father’s (that is, a period of time that the child spends no time at all with the Mother) suggests there is no unacceptable risk to the child of remaining in the Mother’s care until the Appeal can be heard.
14) The mother has sought Orders that X spend regular, fortnightly time with his father pending the outcome of the appeal. She has also sought an Order that X attend upon a child clinical psychologist and continue to attend upon the Anchor Program as recommended by Dr R at Recommendations 7 and 9 of his report [page 24], and that the parties each attend upon post-separation counselling courses as recommended by Dr R at Recommendation 6 of his report [page 24]. It is the mother’s submission that, with this therapeutic assistance, each of the parents will be able to facilitate X to enjoy a meaningful relationship with each of his parents until the appeal is determined.
By an Amended Application in a Case, filed 5th August 2016, the Mother relevantly sought Orders for X to live with her, for X to spend time with the Father each alternate weekend from 10am Saturday until 4pm Sunday and for the Mother and X to attend upon a “child clinical psychologist” for such time as that psychologist determines.
By way of observation only, the Amended Application by the Mother seems to suggest that, since the Court’s decision and Orders of 30th June 2016, there has been some relatively profound change in the Mother’s attitude towards X spending regular time with his Father, the circumstances under which that occurs and the need for some remedial attention to her relationship with X and its flow-on effects for X’s relationship with his Father. It is unfortunate that such things were not relevantly addressed prior to and or during the trial, especially when a number of opportunities were given to the Mother to address them but which she did not.
The Father’s Submissions
Although there were earlier submissions provided by the Father, which also traversed an enforcement Application by the Father in the light of the Mother’s non-compliance with the Court’s 30th June Orders, in my view it is sufficient for current purposes simply to set out the Submissions in Reply filed on the Father’s behalf on 26th July 2016.[5] Like those from the ICL, they are predicated upon not having seen the Mother’s Grounds of Appeal. Relevantly, they provided as follows:
[5] The Father was given the opportunity to file further submissions upon the written reasons becoming available. He declined to do so.
Introduction:
1) These Written Submissions are made in reply to the undated Written Submissions prepared on behalf of the Mother.
The Mother’s Stay Application:
The onus to establish a proper basis for this day is on the applicant:
2) The matters presented by the Mother’s legal representatives fail to refer to any actual appeal points but simply revisits of her case at trial.
3) Further, the Mother is not in a position to make a proper submission in support of a Stay application involving allegations of the child being subject to violence by the Father in 2014, when her evidence before the Federal Circuit Court on the last day of the trial indicated a withdrawal by her of that allegation.
4) It is submitted on behalf of the Father that this Court made findings consistent with the unchallenged evidence of Dr R, the Court appointed expert, that X is not fearful of the Father.
5) Even accepting the Mother’s version that X is fearful, and taking that evidence at its highest, this Court would now need to question why the Mother under those circumstances, would not be seeking that X’s time with his Father be either suspended or under some element of supervision.
6) The issue of the impact of a change of residence in relation to X was fully canvassed at the trial and in particular through the cross examination of Dr R.
The bona fides of the Applicant
7) The Mother has yet to provide any grounds at all, least of all any “substantial” grounds in relation to a proposed appeal, which is of course apparently has yet to be filed with the Full Court of the Family Court of Australia.
8) The presentation of the Mother’s written submissions do not point to any appealable issues, but merely a really visiting of the Mother’s case at trial.
The Stay may be granted on terms that are fair to all parties
9) The issue of fairness to the parties is not relevant to this Stay application. What is relevant is the paramount best interest of X.
10) Nevertheless, there is an inherent contradiction in the Mother attempting to submit that the basis of her appeal reflects issues of the child being fearful of her Father, as well is matters concerning allegations of the Father’s violent conduct towards a child 2014; but at the same time seeking as an apparently temporary measure, parenting orders that relate to unsupervised and one would assume overnight regular contact between X and his Father.
A weighing of the risk of the appeal
11) As already noted in these Written Submissions, the Mother has yet to actually even file an appeal.
12) Further, she has given no indication of when the appeal could be heard.
13) Even in providing notice of a potential application for expedition, the Mother provides this Court with no indication of the merits of such an application.
14) The Mother’s written submission that it is not in the child’s best interest to be uprooted from the familiar environment of the (omitted) of Sydney with her and placed in an unfamiliar household with the Father, simply attempts to resume the matters that she raised at trial, save and except that it is factually incorrect to submit to this Court that the child is any way familiar with the environment of the (omitted) Sydney, noting that he has been living with his Mother in recent times in the (omitted) suburbs of Sydney.
A primary assessment of the strength of the proposed appeal:
15) It is submitted that the Mother has had sufficient opportunity to provide to obtain legal advice in relation to the strength and weakness of her appeal.
16) The Court handed its judgment and provided oral reasons on 30 June 2016, nearly 4 weeks ago. At time of the year delivery [sic] of the extempore judgment, the Mother was present in Court, as was her then solicitor. It would be assumed that their presence before the Court was in part to record the judgment of the Federal Circuit Court and the reasons provided.
17) It is not an apposite position for the Mother to now take to suggest that there the absence of a written transcript of the Reasons for Judgment means that she is unable to properly instruct her new lawyers in relation to the merits or lack thereof of an appeal based on the ground of insufficient reasons, (see Bennett and Bennett (1991) FLC ¶92-191) if the Stay is not granted.
The period of time to which the Appeal can be heard:
18) As noted above, the Mother has not provided any submissions as to the merits of an application for extradition before the Full Court of the Family Court.
19) Currently this Court has no idea:
-when the appeal will be filed;
-the merits of the appeal;
-when it will be heard before the Full Court; and,
-how long the Full Court may take in relation to the delivery of the judgment.
It is submitted that the first three of those four points are essential in relation to the Mother giving this Court some indication that there may be frequent changes of residence involving X and his parents.
The period of time to which the Appeal can be heard:
20) More importantly, it is submitted that this argument has no basis unless the Mother is able to present to this Court some aspect of her appeal that would establish a reasonable basis. At this point in time all [sic: “the”] Mother has done is simply indicated that she intends to file an appeal and seek an expedition or hearing date.
The best interests of the child the subject of the proceedings of the significant consideration:
21) The matters that the Mother raises include issues that were clearly matters of the trial and not matters that deal with any appealable arguments.
22) The Family Report of Ms L was not the evidence before the trial in June 2016.
23) The Mother has still yet to provide any argument that the Federal Circuit Court fell into appealable error in relation to its determination that there should be a change of Residence.
The ICL’s Submissions
The ICL filed written submissions on 25th July 2016. As with the parties, the ICL was given the opportunity to provide any further, albeit very brief, submissions, following the publication of reasons for judgment on 2nd August. Like the Father, the ICL declined to make any further or supplementary submissions; instead he relied solely upon his earlier submissions, noting that (a) the submissions also deal with the Father’s enforcement application, and (b) the submissions were prepared prior to the Mother’s Grounds of Appeal being filed, although I note that the submissions, and the Mother’s Notice of Appeal, were both filed on the same date (25th July). Given the opportunity afforded to all parties and to the ICL, and particularly given the ICL’s comments in his 25th July submissions about not knowing, among other things, the Grounds of Appeal, it is most unfortunate that no supplementary submissions were provided. It made the submissions rather less focussed than they might have been, and doubtless would have been.
The ICL’s submissions were in the following terms:
Introduction:
1) The proceedings relate to the child X born (omitted) 2007 and the mother’s Application for a Stay of Final Orders made on 30 June 2016 and the father’s Application for Enforcement of said Orders.
2) The ICL has read the Applications and Affidavits filed by the mother and father in relation to the Applications as well as correspondence dated 22 July 2016 (a copy of which has been provided to the Court) from the mother’s new Solicitor, Meredith Gray seeking to delay the mother’s filing of her Submissions pending receipt of His Honour’s written reasons for Judgement.
Mother’s Stay Application:
3) The ICL has read the father’s Counsel’s Submissions.
4) The ICL has not received Submissions from the mother as the mother seeks to delay the making of her Submissions for reasons set out below.
5) The mother does not put forward any cogent reasons in her Application as to why His Honour’s Judgement and findings were erroneous.
6) The mother’s position seems to be identical to that expressed by her Counsel at the Hearing rather than challenging any particular aspect of His Honour’s Judgement.
7) The mother has currently not lodged an Appeal. It is difficult, if not impossible, therefore to assess the merits of the mother’s Application both for a Stay and Appeal on the material currently filed by her.
8) Her Stay Application is therefore in anticipation both of obtaining Legal Aid (which she does not seem to have yet received an approval) and the actual lodgement of an Appeal against His Honour’s Judgement.
9) On the current material filed by the mother it will be necessary for her to convince Legal Aid that an Appeal would have legal merit as well as satisfying the financial criteria. The ICL therefore agrees with the father’s Submissions that in the absence of any identifiable appellant basis would make it open for this Court to assume that the mother is not in the near future going to become a successful applicant of Legal Aid of any Appeal to the Full Court of the Family Court.
10) The mother’s position still seems to be that firstly, the child does not want to see the father, secondly, that the child still affirms the “physical abuse” incidents and thirdly that the mother is therefore reluctant to force the child to spend time with his father in the circumstances regardless of the evidence of Dr R.
11) If a Stay were to be granted of the Final Orders of 30 June 2016 there would be in effect no Interim Orders which would ensure X having a meaningful and significant relationship with his father other than the mother complying with her Undertaking to the Court to allow unsupervised overnight time with the father on weekends. The history of the matter suggests that this would be problematic and not provide a proper basis for a reintroduction of the paternal family in X’s life.
Enforcement Application by the father
12) Clearly, the mother concedes that she has not complied with the existing Court Order[s] to date.
13) The evidentiary basis of the mother’s non-compliance (her reasons for the Appeal) is not clear and seems to rely on the same information and arguments and evidence relied on her at the Hearing and not ultimately accepted by the Court.
14) As stated, the mother has no Legal Aid for an Appeal and has to date not lodged an Appeal.
15) The primary issue in all parenting cases is the welfare and wellbeing of the child. Leaving aside the contravention of the existing Order and basis of enforcement of same (which are matters which I leave to His Honour to decide upon) the issue remains that the enforcement of the Order (which may involve Police removing the child from the mother and placing him with the father) would be very traumatic for the child and would not be an auspicious and healthy re-commencement of his relationship with his father.
16) I also note that the non-compliance with the Orders means that X has not been able to commence this current school term at the new school near his father’s home which may mean that he will need to move mid-term which is not ideal and again disruptive to his life.
17) I have received correspondence where it was proposed that X was to spend the weekend of 23 July 2016 overnight with his father but I am not informed as to whether this has occurred.
18) Certainly if the Court were to grant a Stay or extend the time for the mother to make Submissions pending receipt of a written Judgement then I would seek an Interim Order that the child spends time with the father’s family each weekend pending further Order of the Court.
Conclusion
19) The ICL is disadvantaged in not having the mother’s written Submissions as to the basis of her Stay and Appeal grounds.
20) I note the mother seeks to adjourn these proceedings pending receipt of the Judgement and by implication, in the meantime, she seeks for the Final Orders to be Stayed with a condition that X spend time with his father on each weekend. This is a discretionary matter for His Honour to decide upon.
21) If the Court were to make a decision on the evidence currently filed, it is difficult for the ICL to make any Submission other than that there does not seem to be a proper basis for a Stay Order.
22) As to the Enforcement Order being sought by the father, the ICL’s clear preference, so as to minimise the trauma for X, is for the mother to comply with the existing Order rather than have to involve a Court Order for the physical removal of X by Government Authorities. This is in nobody’s interest and especially not in X’s interest.
23) Should the mother be given the opportunity to file her Submissions at a later date and the mother also files proper grounds for appeal then the ICL seeks to supplement these Submissions to the Court.
Consideration & Disposition
I take as the point of reference here the Grounds of Appeal set out in the Mother’s Notice of Appeal, which bears a date of 25th July 2016. For immediate purposes I make the following general observations in relation to the grounds of appeal. They are all predicated upon the Court accepting that there is no formal challenge to the Mother’s bona fides in relation to the appeal.
First, simply to make generic assertions, as the Mother’s submissions appear to me to do, about the Court allegedly acting by not giving sufficient weight to certain matters assists the Court in no significant or pertinent way. No relevant principle is identified that was (or was not) applied.
Secondly, apart from the general contentions of failure to give appropriate weight to certain evidence, such as the child’s views, clearly there is no relevant jurisprudential – or factual - reference point that is raised by the Mother.
Thirdly, apart from general assertions, the Mother does not refer to specific paragraphs of the judgment under appeal, thereby making the Court’s task arduous in assessing the relative merit of the Mother’s complaints and the strength (or otherwise) of the prospects of success of the appeal.
And while true it is that the exercise of discretion is always a matter of individual assessment of the facts, circumstances and law as determined by the individual Judge, the Grounds as set out in the Notice of Appeal seem more often than not to be more generalised complaints about the conclusion reached by the Court either overall and or in relation to specific “considerations”. As already noted, the specific grounds of appeal are based very much on assertion and in large measure, essentially a complaint regarding the weight given to certain matters by the Court rather than identifying specific paragraphs where the alleged errors are said to be manifest.
In this regard, I remind myself of the oft-cited statement of principle by Stephen J in Gronow v Gronow, where his Honour said (emphasis added):[6]
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight. In the present case it should not have done so at all.
[6] Gronow v Gronow (1979) 144 CLR 513 at pp.519-520.
In the same case, Aickin J (with whom Mason and Wilson JJ agreed at p.526) said (at pp.537-538) (emphasis added):
Statements of the general principles to be applied by an appellate court when asked to set aside an order made in the exercise of a judicial discretion generally include a reference to the trial judge giving inadequate weight to some factors and excessive weight to others. It is however a mistake to suppose that a conclusion that the trial judge has given inadequate or excessive weight to some factors is in itself a sufficient basis for an appellate court to substitute its own discretion for that of the trial judge. As Kitto J. said in Lovell v. Lovell (1950) 81 CLR, at p 533 :
“The proposition that the appeal court will consider whether 'no sufficient weight' has been given to relevant considerations is not inconsistent with the principle that the appeal court does not deal with the appeal as if it were exercising the original jurisdiction; even if it considers that insufficient weight has been given to some relevant consideration, it will still not substitute its judgment for that of the primary judge unless it comes clearly to the conclusion for that reason that the discretion has been exercised wrongfully.”
15. It is clear that that test will not be satisfied merely by reason that the appellate court, considering the matter de novo, would itself have arrived at a different result. The fact that a decision on custody depends upon the exercise of a judicial discretion recognizes that in many cases different minds may arrive at different conclusions.
16. The advantage which a trial judge has of seeing and hearing the witnesses is of particular importance in matters of custody where so much depends on an evaluation of the characters and personalities of the parents, and their attitudes, not only to the child, but also to each other. The attribution of comparative weight or importance to various factors will generally be influenced by the impression formed on seeing and hearing each parent, and in appropriate cases the child or children involved. Some objective matters such, for example, as relative financial resources and adequacy of accommodation may stand in a different position but in the present case it is not suggested that any error occurred in that respect.
I also remind myself of the observations by Kirby J in CDJ v VAJ, where his Honour said, at [185, par.2] (internal citations omitted; emphasis added):[7]
Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction.
[7] CDJ v VAJ (1998) 197 CLR 172. Curiously, the grounds of appeal in that High Court case are very similar to the grounds of appeal in the current matter. Apart from an issue about allowing the introduction of new evidence, the issues under appeal related, like here, to matters of “weight.” Perhaps even more curiously, the same expert in that case is the same expert in the current litigation - Dr R.
To state the completely obvious: the same comments apply to this Court as a trial court responsible for determining issues in an overwhelming amount of family law matters.
In keeping with these comments by the High Court, I simply record that the Court has the distinct benefit of having watched, listened to and observed these parties closely over the course of a three day trial. The Court had the benefit of reports from two experts (the family consultant and Dr R) and the oral evidence of Dr R. The evidence of the parties and that from the family consultant and Dr R obviously informed (a) the proper assessment of the evidence given during the trial and (b) the relative weight given to it in the exercise of the Court’s discretion in determining what Orders were, and are, in X’s best interests.
I note too that the Mother’s complaint is not that the relevant statutory considerations were not taken into account by the Court, but rather that, in the Mother’s view, the Court did not take them into account in a way that was “sufficient” in the light of the evidence available to the Court. In my view, it would be otiose to go through each of the paragraphs of the principal judgment and record where the Court considered the relevant evidence and formed the views it did, and why it did so. The reasons speak for themselves in this regard.
Like beauty, questions regarding the “weight” given to evidence at a trial are obviously in the eyes of the presiding Judge. In this regard, I simply refer to the comments by Kirby J in CDJ v VAJ noted earlier in these reasons. There may be some difference in opinion if a different judge was to hear the same evidence. However, as already observed, the High Court has commented on the principles to be applied by an appeal court that is being asked to interfere with the judgment of a trial Judge in circumstances where questions of “weight” are essentially the bases for appeal.
The Mother’s basic and most often recounted contention is that to remove X from her primary care to that of the Father, pending the outcome of the appeal, would cause undue hardship to the child. Respectfully, having regard to the expert opinion of Dr R at trial in relation to the potentially detrimental effects upon X remaining in the Mother’s primary care in the circumstances outlined in the reasons under appeal, any difficulty that the child might have separating from his Mother is demonstrative of what the Court is trying to achieve by placing the child primarily with the Father. This is to say that, relying precisely upon the expert’s opinion regarding the dysfunctional and mutually dependent relationship between Mother and son, one of many positive consequences of ordering that X live primarily with his Father is to end the “dynamic of dependency” that currently exists. To end this “dynamic” is, in the Court’s view, based on all the evidence, in X’s best interests. The so-called risk of a “flip-flop” in the child’s residence, from one parent to another, is not, in the light of the totality of the evidence, sufficient for the Court to stay the Orders under appeal. To do so would not, in my view, be in X’s best interests.
It is also concerning that, according to the Mother, X still believes that the Father committed the alleged acts of violence that were recounted in the principal judgment. Those issues were canvassed at length at trial; the Court made findings in relation to them that were not supportive of the Mother’s position and long-held belief. At the conclusion of the trial, the Mother, with some reluctance, said that she would have to reassess the accuracy and veracity of the account of the four events that, she says, X still believes. Moreover, the Mother now proposes, in any event, that X spend regular and unsupervised time with his Father. If this be so, one might reasonably inquire whether the Mother still harbours any relevant concerns; it would appear not.
While it is promising and positive that the Mother has now begun to facilitate X spending overnight time with his Father, this has only begun since the Court’s delivery of reasons and pronouncement of final Orders after the final hearing. Unfortunately, the history of this matter, which includes the Mother’s regular failure to promote and facilitate X’s relationship with his Father, was a significant consideration (among many others) for the Court making the Orders it did on 30th June 2016. That same history and only the very recent “conversion” of the Mother, so to speak, to facilitate X’s relationship with his Father, is a significant consideration in the current Application before the Court. In the light of the parenting history, the Court cannot be confident that between now and when-ever an appeal is heard that the Mother will continue to facilitate the child’s time with the Father. She was on notice of the issues following the release of the Family Report in August 2015. The Mother did nothing that assisted X and his Father’s relationship following the release of that Report.
Likewise, following the release of Dr R much closer to trial, led to no discernible change in the Mother’s highly anxious and enmeshed relationship with X, or in relation to X’s relationship with his Father. Further, even in the course of the trial, she steadfastly refused to accept the expert evidence of Dr R in relation to, among other things, that there were no mental health concerns in relation to the Father. Quite obdurately, the Mother steadfastly refused to accept the expert opinion in relation to matters that fell squarely in his field of expertise. Instead, she preferred to hang on to her own “assessment” of the Father, based on her dealings with her own family and their range of mental health issues.
Again, such intransigence in the face of clear, independent evidence does not suggest to the Court that the Mother is capable or willing of taking all appropriate steps to bring about proper change to the anxious relationship between Mother and son, which (Dr R found) was characterised by X being “conditioned” in his responses by his Mother, and the child’s “significant separation anxiety.” In my view, on the basis of the expert reports before the Court, while-ever X remains primarily in his Mother’s care, this cycle of anxiety, dependence and “conditioning” will continue. All such things are patently not in X’s best interests. And much more positively, his Father and his Father’s family provides a huge antidote to all of these fears and anxieties, at the same time knowing (and the Court is confident of this) that the Father will continue to facilitate X’s time with his Mother.
Finally, however speculative it might be, the Court may reasonably take the view that because of the time it is likely to take for an appeal to be heard, any so-called teething problems in relation to the new arrangements would almost certainly have been worked out by that time. And again I recall Dr R’s clear evidence that X is a resilient child who would cope with the change in residence after a period of adjustment.
Finally, for all of the reasons given in the principal judgment, in my view it is imperative that the transition of X to his Father’s care occur sooner rather than later. The enmeshed, anxious and dysfunctional relationship between Mother and son needs to be addressed. In my view, this cannot occur while-ever X remains in his Mother’s primary care. Were the Orders of 30th June to be stayed, this critical, remedial course would necessarily be delayed, possibly for quite some time. Such an occurrence is not in X’s best interests.
For my part, it is also important to record, again, how impressive all of the Father’s witnesses were at trial. I have little doubt that they will do their utmost to welcome and support X in his new residence and also continue to support the relationship with his Mother. They bring significant amounts of energy and joie de vivre to their family life. I suspect and obviously hope that it is so, that X will not be able to resist the almost infectious, enthusiastic and positive life with his family and all those around him in that residence bring.
In sum, for the detailed reasons given in the judgment under appeal, in my view, it is clearly in X’s best interests that he reside with his Father and spend regular time with his Mother. Given the equally clear and unchallenged evidence of Dr R regarding (a) the emotionally enmeshed (my words) relationship of Mother and son (the expert referred to “dynamic of dependency” and “intense separation anxiety”), (b) the fact that X has been “conditioned” by his Mother adversely against the Father, (c) the clear capacity of the Father (and his family) to provide a strongly nurturing environment, and (d) X’s expressed desire to have a “full family” and the very positive observations between X and his Father (“they were quite bubbly together”; in contrast, Dr R noted that when X saw his Mother “he became very anxious”), there is just too much risk to X if he remained primarily in his Mother’s care.
Accordingly, the stay Application, filed 5th August 2016, must be refused and the Application dismissed.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 26 August 2016
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