LOCKLEY & BARDOT
[2016] FamCAFC 185
•6 September 2016
FAMILY COURT OF AUSTRALIA
| LOCKLEY & BARDOT | [2016] FamCAFC 185 |
| FAMILY LAW – APPEAL – CHILDREN – STAY – Appeal against refusal to grant a stay – Where the mother has been the child’s primary carer since birth – Where the primary judge’s orders changed the child’s residence from the mother to the father and gave the father sole parental responsibility for the child – Where the child had never lived with the father – Where the mother has filed an appeal against these orders – Where the mother sought a stay of the orders pending the determination of the appeal – Where the primary judge refused to grant a stay – Where the primary judge assessed the prospects of success of the mother’s appeal by reference to the wrong Notice of Appeal – Where the proposed appeal is arguable – Where the primary judge also considered the time it would take for the mother’s appeal to be heard by the Full Court – Where the appeal was expedited – Where the single expert gave evidence that moving the child to the care of his father would be upsetting in the short term – Appeal allowed. |
| Family Law Act 1975 (Cth) s 60CC(3)(c) Federal Circuit Court Rules 2001 (Cth) r 15.03 |
| Adamson & Adamson (2014) FLC 93-622 Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 CDJ v VAJ (1998) 197 CLR 172 Gronow v Gronow (1979) 144 CLR 513 |
House v The King (1936) 55 CLR 499
| APPELLANT: | Ms Lockley |
| RESPONDENT: | Mr Bardot |
| INDEPENDENT CHILDREN’S LAWYER: | SP Nasti & Co Solicitors |
| FILE NUMBER: | SYC | 8874 | of | 2007 |
| APPEAL NUMBER: | EA | 141 | of | 2016 |
| DATE DELIVERED: | 6 September 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan, Aldridge & Foster JJ |
| HEARING DATE: | 6 September 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 26 August 2016 |
| LOWER COURT MNC: | [2016] FCCA 2210 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Wearne (solicitor advocate) |
| SOLICITOR FOR THE APPELLANT: | Legal Aid NSW |
| COUNSEL FOR THE RESPONDENT: | Mr Jackson |
| SOLICITOR FOR THE RESPONDENT: | McCabe Partners Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Nasti of SP Nasti & Co Solicitors |
Orders
That the appeal be allowed.
That the orders of Judge Neville made on 26 August 2016 be set aside.
That the orders of Judge Neville made on 30 June 2016 be stayed pending determination of the Appellant Mother’s appeal in EA 110/2016 by the Full Court of the Family Court of Australia.
That Order 9 of the Orders of Registrar Cameron dated 2 September 2016 be varied to extend time for the Appellant to file and serve her summary of argument in the substantive appeal (EA110/2016) to Thursday 8 September 2016 at 10.00 am.
That the Application in an Appeal filed 31 August 2016 be allowed.
That the Appellant Mother have leave to file and serve an Amended Notice of Appeal in accordance with the amended notice filed in Court today.
Orders in accordance with the signed Minute of Consent marked Exhibit A in the appeal.
IT IS FURTHER ORDERED BY CONSENT AND PENDING DETERMINATION OF APPEAL EA 110/2016:
That the child, [X], shall live with the Mother.
That [X] shall spend time with the Father as follows:
(9.1) During school term:
(9.1.1)From 10.00 am Saturday, 17 September 2016 to 4.00 pm Sunday, 18 September 2016;
(9.1.2)Commencing Friday, 14 October 2016 from after school (or 3.00 pm) Friday to before school (or 9.00 am) Monday and each alternate weekend thereafter.
(9.2) During school holidays:
(9.2.1)In term 3, 2016, from 10.00 am Saturday, 24 September 2016 to 10.00 am Saturday, 1 October 2016;
(9.2.2)In term 4, 2016, for one half of the school holiday period on a week-about basis.
That [X] shall have the following parental communication:
(10.1)[X] shall be at liberty to telephone his mother or his father at any time that he requests;
(10.2)[X] shall have telephone contact with the parent with whom he is not living or spending time each Wednesday between 7.00 pm – 8.00 pm.
That [X] shall be enrolled in, and attend at [D] Public School.
That the mother and father do all things necessary to facilitate [X’s] attendance with the mother upon a child and family psychologist agreed between the parties to address separation anxiety dynamic identified in Dr [B’s] Expert Report dated 6 March 2016 and for this purpose the mother has liberty to provide a copy of Dr [B’s] report to the psychologist.
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 Lockley & Bardot 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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 141 of 2016
File Number: SYC 8874 of 2007
| Ms Lockley |
Appellant
And
| Mr Bardot |
Respondent
And
Independent Children’s Lawyer
EX TEMPORE REASONS FOR JUDGMENT
Aldridge J
This appeal challenges the refusal of Judge Neville to stay parenting orders made by his Honour on 30 June 2016.
The orders concern the parties’ child, X, who was born in 2007. The parties, Ms Lockley (“the mother”) and Mr Bardot (“the father), could not agree on the child’s living arrangements and it fell to Judge Neville to decide what arrangements would be in the child’s best interests.
On 30 June 2016 his Honour determined that the child should no longer live with his mother, who had been his primary carer since birth, but should instead live with his father (with whom he had never lived), who was to have sole parental responsibility for him. The orders provided for the child to spend time with his mother each alternate weekend from Friday after school until 4:00 pm Sunday and for half of the school holidays.
His Honour’s reasons were delivered orally on 30 June 2016. The settled reasons became available on 2 August 2016.
The mother was not satisfied with those orders and on 5 July 2016 she filed an Application in a Case seeking a stay of the orders. On 18 July 2016 the primary judge made a direction for the stay application to proceed by way of written submissions.
The mother filed a Notice of Appeal relating to the orders of 30 June 2016 on 25 July 2016 (EA110 of 2016).
On 4 August 2016, the mother received a grant of legal aid and on the following day her solicitor filed an Amended Application in a Case and an Amended Notice of Appeal. The mother’s Amended Application in a Case was not limited to the seeking of a stay. The mother also sought an order that she have sole parental responsibility for the child.
The solicitor also filed submissions in support of the stay application.
On 26 August 2016, the primary judge delivered written reasons refusing the stay and dismissing the Application in a Case.
On 30 August 2016 the mother filed a Notice of Appeal against those orders. It is this appeal that is presently before us. Today, the mother was granted leave to rely upon an Amended Notice of Appeal in this appeal.
The primary judge’s reasons for refusing the stay may be summarised as:
·The main challenge in the appeal was that sufficient weight was not given to particular evidence or statutory considerations.
·Appeals on such grounds face the difficulty that in order to succeed the appellant must demonstrate error. Such error is not established merely by persuading the court hearing the appeal that it would arrive at a different result by weighing the various considerations differently. His Honour referred to Gronow v Gronow (1979) 144 CLR 513 at 519-520 and 537‑8 and to CDJ v VAJ (1998) 197 CLR 172.
·His Honour considered that his findings on the various statutory considerations that led to the orders he made were properly open to him on the evidence. Thus, it may be inferred, his Honour considered that the prospects of success on the appeal were not high.
·The date of the hearing of the appeal was unknown but his Honour noted 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 then” (reasons at [36]).
·The best interests of the child favoured him being removed from the “enmeshed anxious and dysfunctional relationship” with his mother and placed with the welcoming and supportive father and his family. His Honour said “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 [the child]’s best interests” (reasons at [37]).
At the outset it is important to record that his Honour’s decision to refuse the stay is itself an exercise of discretion and thus the well-known principles relating to appeals from such a decision apply (House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513).
As his Honour recorded, the principles that apply to a stay application were conveniently set out in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 at [17]-[18] as follows:
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.
None of his Honour’s considerations were inconsistent with the application of these principles.
The mother seeks to adduce evidence in the appeal to show that the primary judge in fact had the Amended Notice of Appeal before him (his Honour’s reasons refer only to the Notice of Appeal). The significance of this is that the Amended Notice includes a ground which goes beyond asserting errors of weight and discretion. It contains a ground that the primary judge erred in applying an outdated version of s 60CC(3)(c) of the Family Law Act 1975 (Cth), the current version of which was amended with effect from 7 June 2012 and which applied to proceedings commenced after that date. The Initiating Application was filed on 5 June 2013. The evidence points to a potential error in the reasons and I would receive the mother’s evidence.
Such an approach would constitute an error justifying appellate intervention if it had a material effect upon the outcome (Adamson & Adamson (2014) FLC 93-622 at [34]).
The mother submits, therefore, that there is more to her appeal than a challenge to the exercise of discretion and that his Honour should have found that the appeal was arguable. Although the primary judge did not say that the appeal was not arguable, his Honour was clearly of the view that it was an appeal that almost certainly could not succeed.
Although it is always invidious for a judge to have to assess the prospects of success on an appeal from their own decision, there is force in the submission that the primary judge did not fully apprehend the nature of the appeal. Further, whilst the decision was a discretionary one, it was one which led to significant changes to the settled life of the child. The effect of the decision was that the child was to be moved from the care of his mother, who had been his primary carer since birth, to the care of his father. The single expert had expressed the view that the mother was a “capable caring parent” and that the child was “developing well” in her care.
As pointed out by the solicitor advocate for the mother, the father had not seen the child at all from early 2009 until 1 February 2014. As I understand it, the child spent some time with the father on weekends until July 2014 when the mother stopped making the child available. Pending the final hearing, the father refused a proposed arrangement to resume supervised time, until such time again started on 30 April 2016 shortly before the commencement of the trial in late June.
There is, therefore, some merit in this aspect of the appeal.
The mother proposed orders for the child to spend time with the father in the event a stay was granted. The mother submits that the primary judge did not have proper regard to these proposals as a condition of any stay.
The primary judge did not refer directly to the mother’s proposals, but said:
15.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 [the child] spending regular time with his Father, the circumstances under which that occurs, and the need for some remedial attention to her relationship with [the child] and its flow-on effects for [the child’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.
Thus, it is clear that his Honour was aware of the proposed orders.
The primary judge did, however, at some length, consider the importance of the child moving to his father’s care sooner rather than later. Indeed, his Honour was of the opinion that this was imperative. Implicitly, therefore, the mother’s proposals were rejected because the primary judge considered they were not in X’s best interests.
Those findings were based upon the findings in the substantive reasons, which, of course, are under challenge.
His Honour, quite properly, took into account the delay in the appeal coming on for hearing. It is fair to say that the primary judge took the view that this would take some time. It was a significant consideration in refusing the stay.
The appeal has now been listed for hearing on 12 September 2016, which is next week. That circumstance must be given considerable weight. The early listing of the appeal has two effects. If a stay is granted and the appeal ultimately does not succeed, the child would have been in his mother’s care for only a comparatively short further time. However, a stay would prevent the unfortunate position, in the event of a successful appeal, of X moving from the mother to the father for a relatively short period and back to the mother. The single expert opined that, at least in the short term, moving to the father’s care would be upsetting for the child. That would not be in the child’s best interests.
Accordingly, I take into account, as further evidence in the appeal, the fact that the appeal is listed for hearing on 12 September 2016.
The mother also submitted that the primary judge improperly conducted the stay hearing in chambers without first having obtained the consent of the parties to that course (see s 54 of the Federal Circuit Court of Australia Act1999 (Cth) and r 15.03 of the Federal Circuit Court Rules 2001 (Cth)).
On 18 July 2016, the primary judge made directions in open court for the stay application to proceed by way of written submissions. In the absence of a transcript of the proceedings on that day, it is impossible to say whether or not the parties consented to that course. In that case and given that I consider the appeal should be allowed on other grounds, it is not necessary to pursue this ground further.
Taking into account the proximity of the hearing date, the proposed interim orders and the misapprehension as to the nature of the appeal made by the primary judge, the appeal should be allowed and a stay granted. That stay should be accompanied by appropriate orders as to the time the child is to spend with the father pending determination of the appeal.
Earlier this morning, we indicated to the parties that we proposed to allow the appeal and invited them to agree on appropriate interim orders pending the determination of the appeal. They have done so and in my opinion those orders should be made.
Foster J
I agree with the reasons given by Aldridge J and the orders proposed by him.
Ryan J
I also agree and the orders will be as outlined by Aldridge J, including the orders contained in Exhibit A.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Aldridge & Foster JJ) delivered on 6 September 2016.
Associate:
Date: 14 September 2016
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