M v W
[2022] WASCA 169
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: M -v- W [2022] WASCA 169
CORAM: MURPHY JA
MITCHELL JA
HEARD: 8 DECEMBER 2022
DELIVERED : 8 DECEMBER 2022
PUBLISHED : 14 DECEMBER 2022
FILE NO/S: CACV 122 of 2022
BETWEEN: M
Appellant
AND
W
Respondent
ON APPEAL FROM:
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram: SUTHERLAND CJ
Citation: [W] and [M] [2022] FCWA 239
File Number : PTW 2057 of 2020
Catchwords:
Family law - Practice and procedure - Interim order - Application for stay - Application for injunction restraining removal of child from Australia - Where primary judge had granted parenting orders in favour of respondent, including permitting respondent to have sole parental responsibility and relocate to United States of America - Appellant had not established it was in the interests of justice to grant a stay and injunction - Whether in the interests of justice to issue a subpoena - Turns on own facts
Legislation:
Nil
Result:
Application for stay dismissed
Application for injunction dismissed
Application for leave to issue subpoena dismissed
Category: B
Representation:
Counsel:
| Appellant | : | R S Ingleby |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | GG Legal |
| Respondent | : | In person |
Case(s) referred to in decision(s):
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Joyce v Anderson [2020] WASCA 48
Lee v Lee [2019] HCA 28; (2019) 266 CLR 129
M v W [2022] FCWA 239
Mercanti v Mercanti [2015] WASCA 206
Mills v Mills [1938] HCA 4; (1938) 60 CLR 150
Shephard v Galea [2020] WASCA 152
Woodley v Woodley [2018] WASCA 149
X v Y [2015] WASCA 70
REASONS OF THE COURT:
On 8 December 2022, we heard an application by the appellant in this appeal. The respondent did not attend or appear by solicitors or counsel at the hearing. The primary issues for consideration were whether the appellant should be granted a stay of the primary court's orders and an injunction pending the determination of the appeal. Other issues included whether the appellant should be given leave to issue a subpoena. We made the orders referred to in [27] below and said we would provide reasons. These are our reasons.
Background
The appeal concerns a decision of Sutherland CJ of the Family Court of Western Australia in relation to parenting orders. The primary judge determined that it was in the best interests of the child of the appellant (the father) and the respondent (the mother) to continue to reside with the mother, and that the mother be permitted to relocate with the child to the United States of America (USA), where they would live with the mother's family. The child is 3 years of age.
Her Honour published detailed reasons for judgment on 10 November 2022, which explained the difficult history of the parties' relationship with each other and had regard to a variety of considerations in determining where the best interests of the child lay.[1]
[1] W and M [2022] FCWA 239 (primary decision).
The primary judge made final orders on 18 November 2022. Order 5 of the primary orders provided:
Forthwith, the [mother] be permitted to relocate with the said child to Michigan in the United States of America.
Order 6 provided for the father to spend time with the child, relevantly from 8.00 am on Friday to 4.00 pm on Saturday each week, '[p]ending relocation to Michigan'. Order 13 required the mother to notify the father of certain contact details within 48 hours of arriving in Michigan.
The father's application
By application in an appeal dated 6 December 2022, the father sought orders for substituted service of the appeal notice on the lawyers who acted for the mother in the primary proceedings (Meillon & Bright). He also sought a stay of certain of the primary court's orders, including an order that the mother be permitted to relocate with the child to the USA, and an injunction restraining the mother from removing the child from Australia. He also sought leave to issue a subpoena to 'the Chief Commissioner of WA Police'. The application was supported by an affidavit sworn by the father on 6 December 2022.
The application was brought on urgently. On 7 December 2022, the court ordered that the following documents be sent by email to Meillon & Bright, and to an email address for the respondent:
1. the appeal notice;
2.the father's application and affidavit of 6 December 2022; and
3.the court's orders of 7 December 2022.
The orders also required the father to swear an affidavit deposing to compliance with the court's orders before the hearing on 8 December 2022. In that regard, the solicitor for the father swore an affidavit on 7 December 2022. The affidavit included evidence to the effect that the email attaching the documents referred to by the court's orders of 7 December 2022 had been sent to Meillon & Bright at 11.03 am on 7 December 2022, and to an email address for the mother at 1.02 pm on 7 December 2022. The affidavit indicated that there was no 'undeliverable internal server email/message' in relation to the latter email.
Evidence on the father's application
The father's affidavit of 6 December 2022 included evidence to the effect set out in [9] ‑ [12] below.
Prior to and at the hearing for final orders on 18 November 2022, the father sought an undertaking that he be given 28 days' prior written notice of any travel by the child outside of Australia, and that the child would not be removed from Australia within that 28‑day period. The mother did not give an undertaking to that effect and the court did not make an order requiring the mother to notify the father before removing the child from Australia. The father deposed that the mother had informed the court, through her counsel, that notice would not be necessary as it would be quite some time before the child obtained a passport.
On 20 November 2022, the father sent a text message to the mother requesting that, once a flight was booked, he be informed of the 'fly out' date. There was no effective response to that request. The mother was in hospital due to mental health issues.
The next occasion on which the child was scheduled to spend time with the father was on 2 December 2022. On 1 December 2022, the father sent a text message to the mother seeking confirmation of the scheduled handover of the child, and indicated that he would do a 'police welfare check' if he did not hear anything from the mother. He received no response to that text message. He nevertheless drove from Pemberton (where he resides) to Perth for the 'handover'. He arrived on time at the handover location on 2 December 2022, but the mother and the child did not attend. The father texted the mother without response. The father's lawyer also wrote to Meillon & Bright, seeking information as to the child's current location and whether the child had a passport. On 2 December 2022, the father's lawyer received a response from Meillon & Bright to the effect that they were endeavouring to obtain instructions and would 'revert' by no later than 5 December 2022.
In the afternoon of 2 December 2022, the father was informed by text message from the mother that the mother and the child had left for the USA, and that she would be in touch when she arrived. The father sent a reply to the effect that he had contacted Western Australia Police, who had advised that the child was still in Western Australia. On 3 December 2022, the father noticed he had received an email from the mother dated 2 December 2022 to the effect that the mother and the child 'had left for [the USA]'. The father has not received any communication from the mother since then. However, he contacted the Western Australian police on 2 December 2022, and was told by a police officer that they had seen the child and he was 'OK'. The father also contacted the Department of Foreign Affairs on 2 December 2022, but the Department would not disclose whether the child had obtained a passport.
Shortly before the hearing on 8 December 2022, the father's solicitors provided to the court a copy of a letter from Meillon & Bright dated 8 December 2022. A copy of the letter had also been sent by Meillon & Bright directly to the court. Meillon & Bright's letter dated 8 December 2022 acknowledged receipt of the documents sent by email dated 7 December 2022, and stated that a copy of that email and its attachments had been sent to the mother, who was referred to as 'our client'. The solicitors also indicated that they had advised the mother and the maternal grandmother by telephone that the father's application was listed for hearing at 3.00 pm on 8 December 2022. The letter also stated that since the mother's hospitalisation on 19 November 2022, including following her discharge around 30 November 2022, the mother may lack legal capacity to comprehend or instruct a lawyer in relation to the appeal in general, or in relation to the father's application in particular. The letter also said that Meillon & Bright's understanding was that the mother and the child had departed Western Australia on 1 December 2022 for Sydney, and on 8 December 2022 had boarded a flight in Sydney to the USA.
General principles
The relevant principles were summarised sufficiently for present purposes by this court in Mercanti v Mercanti:[2]
The exercise of this court's discretion to grant an injunction pending the determination of an appeal requires an assessment to be made of the decision under appeal and also the balance of convenience, including whether refusal of the injunction would render the appeal nugatory. See Paringa Mining & Exploration Co Plc v North Flinders Mines Ltd [1988] HCA 53; (1988) 165 CLR 452, 460. The nature of the criteria which are ordinarily relevant to the exercise of this court's discretion to grant an injunction, pending an appeal, are analogous to those which are relevant to the grant of a stay. Although it is ordinarily necessary to establish that the appellant has reasonable prospects of success on the appeal, the appellant's prospects are, to some extent, interdependent with the balance of convenience. See Apache Northwest Pty Ltd v Agostini [2009] WASCA 147 [10].
[2] Mercanti v Mercanti [2015] WASCA 206 [16].
Disposition of application for stay and injunction
We were not persuaded that it was in the interests of justice to grant a stay or an injunction for the following reasons.
First, in relation to whether the appeal would be rendered nugatory, the father did not contend that there would be any legal impediment to the child being ordered to return to Australia if the appeal were successful. Rather, the father submitted, in effect, that, having regard to the circumstances of the apparent or alleged departure of the child, it should be inferred that the mother would take steps to avoid compliance with any restorative orders made by the Court of Appeal if the appeal were successful. Whilst we accepted that in cases such as this, a potential risk of that kind could not be excluded, it was not one to which we would attach great weight in the particular circumstances here. It is true that the mother had not responded to the father's recent requests for information as to any proposals to leave the country, but, equally, she was not obliged to. Moreover, the primary judge found that the mother had generally complied with court orders during the proceedings to date,[3] and, as counsel for the father accepted, the mother has not breached any court order by removing the child from Australia (if she had left the country). Accordingly, in these circumstances and in the absence of any suggested legal impediment to the return of the child if the appeal were successful, we were not persuaded that this was a case in which it ought be concluded that the appeal would be rendered nugatory if a stay and injunction were not granted.
[3] Primary decision [139].
Secondly, albeit as a matter of necessarily preliminary impression, we had serious doubts that the proposed grounds of appeal had reasonable prospects of success as articulated. That is so for the reasons in [18] ‑ [22] below.
Broadly speaking, many of the proposed grounds[4] raised, expressly or impliedly, 'weighting' errors in relation to the judge's ultimate finding as to what was overall in the best interests of the child. If it were intended to be alleged that the primary judge erred in finding that it was in the best interests of the child to continue to live with the mother, that the mother have sole parental responsibility, and that the mother be permitted to relocate to the USA,[5] there would need to be a ground of appeal alleging error in those terms. If such an error were alleged and it was alleged that the finding was made in the absence of any evidence at all, or that it was an inferential finding not reasonably open on the primary facts as found by the judge, then error of law would need to be alleged.[6] If it were alleged that there was some evidence for the finding but the finding was wrong in fact, or that the inference was dependent on a number of intermediate findings of primary fact which were themselves erroneous, error of fact would need to be alleged, supported by a Consolidated Practice Direction 7.4 Schedule stating all of the evidence in support of each impugned finding of fact and all the evidence against it. But in neither case could such an alleged error be properly asserted or established by grounds alleging 'weighting' errors. Moreover, in this context, the observations in X v Y[7] are pertinent:
[62]It is unnecessary for present purposes to go so far as to determine that the decision under appeal is, or is sufficiently analogous to, a 'discretionary' decision so as to attract the principles in House v The King [1936] HCA 40; (1936) 55 CLR 499; H v P [[2011] WASCA 78] [48]; compare Chapa v Chapa (2013) FLC 93 538 [42]. Nevertheless, the question of what is in the best interests of the children in a case such as this involves, at least, an evaluative judgment. It involves 'elements of fact, degree and value judgment' and draws upon the judge's experience and familiarity with the nature of the subject matter ... Also, as French J (as his Honour then was) observed in Pelka v Secretary, Department of Family and Community Services [2006] FCA 735; (2006) 151 FCR 546, matters of evaluative judgment may be attended 'by a degree of uncertainty. Indeed, it may be that different decision makers on the same facts could quite reasonably come up with different answers' (556).
[63]In CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172, Kirby J referred to the 'difficult and evaluative decisions' which a court exercising family law jurisdiction has to make. His Honour observed:
'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.
…
Inescapably … intuition plays a part in the ultimate decision. It will sometimes be hard to explain. An appellate court will recognise the fact that it is dealing with the orders and reasons of a specialist judge [2], [186]. (footnotes omitted)'
[64]Those observations have equal application to decisions involving the children of de facto partners under the [Family Court Act 1997 (WA)].
[4] Father's affidavit dated 6 December 2022, pars 18(a) ‑ (b), (e) ‑ (g), (i) ‑ (l).
[5] Primary decision [3(b)], [179] - [181].
[6] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 355 ‑ 356.
[7] X v Y [2015] WASCA 70 [62] ‑ [64].
Further, if an error of fact were alleged, there would need to be a recognition that the primary judge's finding as to the best interests of the child and associated intermediate findings of primary fact were to a large extent based on an assessment of the credibility and reliability of the witnesses, including her Honour's preference for the mother's evidence where it conflicted with that of the father,[8] and her Honour's finding that the father was a very unimpressive witness.[9] In her Honour's assessment of the evidence, her Honour was also impressed by the evidence of the single expert witness.[10] It is well established that an appellant who seeks to overturn credibility‑based findings of primary fact faces a high hurdle. An appellate court is, in some respects, at a disadvantage as compared to a trial judge who sees and hears the witnesses giving their evidence. Generally, the trial judge's credibility based findings of primary fact will not be reversed on appeal unless it is demonstrated that (1) those findings are flawed by reference to incontrovertible facts or uncontested testimony; or (2) the findings are glaringly improbable or contrary to compelling inferences; or (3) the trial judge has failed to use, or has palpably misused, their advantage as trial judge.[11] The principles were relatively recently stated by the High Court in Lee v Lee:[12]
A court of appeal is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are 'glaringly improbable' or 'contrary to compelling inferences' is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, 'in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge'. (footnotes omitted)
[8] Primary decision [16].
[9] Primary decision [27].
[10] Primary decision [38].
[11] Woodley v Woodley [2018] WASCA 149 [154]; see also Joyce v Anderson [2020] WASCA 48 [105] ‑ [106], [205] ‑ [209].
[12] Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 [55].
The proposed grounds of appeal did not appear to be framed in a manner which recognised and addressed these principles.
Further, appellate caution, where it is required (as in this case), has particular significance where 'the interests of individuals are divergent and conflicting, where personal feeling is acute … [and] when so much depends upon the character, personal motives and interests of individual persons'. When the parties give evidence in such a case, the trial judge is in much better a position than an appellate court to effectively estimate the weight and value of evidence.[13] In any event, on our preliminary review of the primary judge's reasons for decision, it appeared difficult for the father to contend that her evaluative decision as to where the best interests of the child lay was wrong on the facts which her Honour found.
[13] Mills v Mills [1938] HCA 4; (1938) 60 CLR 150, 161; Shephard v Galea [2020] WASCA 152 [127].
Also, insofar as the proposed grounds allege a failure to give adequate reasons,[14] at least prima facie the primary decision is a detailed judgment apparently addressing the evidence, the parties' contentions and explaining the reasoning process which led to her Honour's conclusions.
[14] Father's affidavit, pars 18(c) - (d).
For these reasons, we were not persuaded that the father had established that it was in the interests of justice to grant a stay and an injunction. That conclusion was confirmed by, but not dependent upon, one further matter. That was that in light of the letter from Meillon & Bright (officers of the court) dated 8 December 2022, the utility of any order was in doubt in any event.
Disposition of application for leave to issue a subpoena
In relation to the application for leave to issue of a subpoena, the father referred to pars 73 ‑ 76 of his affidavit in which he said that on 19 August 2022, after the completion of the evidence before the primary court, he applied to reopen his case to introduce further evidence. He said, in effect, that, on that occasion, he successfully applied to admit further evidence, but he had also applied to issue a subpoena to the Western Australia Police Force, which application was dismissed. He said the application to issue a subpoena was to obtain evidence of further complaints made by the maternal grandmother to the police about him which he said were false. Counsel for the father also referred in this regard to primary decision [105(d)].
We were not provided with the judge's reasons for decision in dismissing the application before the primary judge to issue a subpoena. In the absence of the judge's reasons and finalised grounds of appeal directed expressly to any alleged error in the judge's reasons in that regard, it was premature to consider this aspect of the father's application. We accordingly dismissed it.
Orders
It was appropriate on the materials available to us to make an order for substituted service and associated programming orders.
At the conclusion of the hearing, we made the following orders:
1.Service of the appeal notice in this appeal may be effected by sending a copy of the appeal notice together with a copy of these orders to [Meillon & Bright] and to the respondent's email address [redacted].
2.The appellant must serve the appeal notice either personally or in the manner provided for in order 1 of these orders by 4.00 pm on 9 December 2022.
3.By 4.00 pm on 13 December 2022 the appellant must file an affidavit deposing as to service of the appeal notice and these orders.
4.By 4.00 pm on 16 January 2023 the appellant must file, and if a notice of respondent's intention has been filed, serve his appellant's case.
5.The appellant's application for a stay and injunctive orders and for leave to issue a subpoena to the Chief Commissioner of the WA Police is dismissed.
6.The costs of the appellant's application in an appeal filed on 6 December 2022 are reserved.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Mitchell
14 DECEMBER 2022
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