Madden and Callanan (No.2)

[2016] FCCA 346

FEDERAL CIRCUIT COURT OF AUSTRALIA

MADDEN & CALLANAN (No.2) [2016] FCCA 346

Catchwords:
FAMILY LAW – Parenting – application for stay of interim Orders pending appeal.

Legislation:

Federal Circuit Court Rules 2001, r.16.05(2)(e)

Friscioni & Friscioni [2009] FamCAFC 43
Madden& Callanan [2016] FCCA 59
Sheldon & Weir(Stay Application) [2011] FamCAFC 5

Applicant: MS MADDEN

Respondent: MR CALLANAN

File Number: WOC 1081 of 2015

Judgment of: Judge Altobelli

Hearing date: 11 February 2016

Date of Last Submission: 11 February 2016

Delivered at: Wollongong

Delivered on: 22 February 2016

REPRESENTATION

Counsel for the Applicant: Mr Dura

Solicitors for the Applicant: Rossi Simicic Lawyers

Counsel for the Respondent: Ms Gillies

Solicitors for the Respondent: TH Walker Solicitors

Solicitors for the Independent Children's Lawyer: DGB Lawyers

ORDERS

1. The Application in a Case filed 8 February 2016 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Madden & Callanan (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 1081 of 2015

MS MADDEN

Applicant

And

MR CALLANAN

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment explain why the Court has declined to stay its Orders made in this case on 22 January 2016.

Background

1. The case concerns two children, X, born (omitted) 2008 and Y, born (omitted) 2010.

2. On 22 January 2016, I made interim Orders in relation to the children and then transferred the matter to the Family Court of Australia at Sydney to be listed for directions before a Registrar on 24 March 2016 at 9:30am, with a recommendation that the matter go into the Magellan list.  The reasons for judgment were published as Madden & Callanan [2016] FCCA 59.

3. On 8 February 2016, the Mother filed an Application in a Case seeking that Orders 3 and 4 of the Orders made 22 January 2016 be stayed.  She sought an order that, pending the determination of her appeal filed 4 February 2016, the children spend time with the Father at a supervised contact centre or equivalent.  Orders 3 and 4 made on 22 January 2016 provide for the children to spend time with their father from 8:00am each Monday until the commencement of school on Wednesday or 9:00am for Y, or until 9:00am on any day when the child, X, is not required to attend school.  The Orders also covered special days and incidental matters.

4. The Mother’s Application in a Case seeking a stay was supported by her Affidavit sworn 8 February 2016 and filed on that date.

5. By way of a Response to an Application in a Case filed 11 February 2016, the Father sought, in effect, dismissal of the Mother’s application, together with an amendment to the Orders pursuant to the slip rule (r.16.05(2)(e)).  This part of the application was uncontentious.  The Father’s response was supported by his Affidavit, sworn 10 February 2016 and filed on 11 February 2016. 

6. The stay application came before me on 11 February 2016.  Mr Dura of Counsel appeared on behalf of the Applicant Mother, Ms Gillies of Counsel on behalf of the Respondent Father, and Ms Longbottom appeared as Independent Children’s Lawyer.  Both the Independent Children’s Lawyer and the Father opposed the granting of the stay.

7. Mr Dura had informed the Court that his client had applied for the hearing of her appeal to be expedited.  It was agreed that the Court would be advised of the date on which the expedition application would be heard by the Full Court.  Chambers was advised that this date would be Wednesday, 24 February 2016.  The pressure of work in the Wollongong registry explains the delay in providing these reasons for judgment and their abbreviated nature.  All parties and the Court agreed that it would be useful for the Full Court in determining the expedition application to know of the outcome of the stay application.

The applicable law

1. Mr Dura referred the Court to the Full Court’s decision in Sheldon & Weir(Stay Application) [2011] FamCAFC 5. Ms Gillies referred the Court to the Full Court’s decision in Friscioni & Friscioni [2009] FamCAFC 43. Both cases contain comprehensive statements of the applicable law. Sheldon & Weir refers to Friscioni & Friscioni with no obvious disapproval.  In any event, the law governing a stay of Orders pending an appeal is uncontroversial.  For present purposes, this Court adopts as the applicable statement of the law paragraphs 53-57 of the Full Court’s decision in Friscioni.

Discussion

1. Both Ms Gillies and Ms Longbottom submitted that the Father, who was the successful party in the initial proceedings before me, should not be deprived of the benefit of the Orders made in relation to the children unless it is appropriate.

2. All parties conceded that the making of an order for a stay is wholly discretionary and that this case should be decided by reference to its own facts.

3. Mr Dura, on behalf of the Mother, submitted that there would be a real risk to her if she were denied a stay as it would render a successful appeal nugatory or would make it impossible or impractical to restore the situation.  In effect, both Ms Longbottom and Ms Gillies contend that that is not the case.  Inherent in the Mother’s submission that her appeal would be rendered nugatory is the assumption that there is a risk of harm to the children to which they would be exposed in a situation where the Orders for them to spend time with their father have not been stayed.  Both Ms Gillies and Ms Longbottom submitted, however, that a comprehensive risk assessment was, in effect, undertaken in the reasons for judgment published 22 January 2016.  Even if the appeal was successful, it is unlikely, they contend, that the Full Court would do anything other than remit the case for consideration before a judge (of the Family Court, given the transfer to that Court).  In circumstances where the only risk assessment conducted has concluded that the Orders sought to be appealed are in the best interests of the children, there is simply no objective basis for suggesting that her appeal is rendered nugatory. 

4. The Court accepts these submissions.  If the stay is declined, the Mother’s appeal is not rendered nugatory.  The matter having been transferred to the Family Court, if there are further instances of concern in relation to the children’s behaviour or disclosures, they can be raised in that Court.  Another Judge can conduct his or her own risk assessment, if considered appropriate.

5. Both Ms Gillies and Ms Longbottom point out the hardship that would be suffered by the Father if the stay were granted, particularly in circumstances where all parties recognise the potentially extensive delays in having the Full Court determine the matter and provide reasons for judgment.  They reemphasise the history of the Father’s involvement in the parenting of these children, as set out in the previous reasons for judgment.  Whilst the Court accepts this is a relevant factor, any consideration of the hardship to the Father must be subsumed to the best interests of the children.  An assessment of the best interests of the children has been undertaken in the reasons for judgment.  There is no need to revisit those reasons.  The reasons speak clearly in this regard.

6. To the extent that any submission was made that the appeal lacks merit, the Court does not accept this.  It is not possible on the material before the Court to attribute anything but good faith to the Mother in filing the appeal.  It is her right to appeal.  She genuinely believes that there is a risk to the children.  However, the Court has found that, objectively, there is no unmanageable risk in the children spending time with their father.

7. There was no undue delay between the making of the order and the filing of the stay application.

8. It was common ground that there were potentially extensive delays before the appeal could be heard unless it was expedited.  It was also accepted that there could be a delay in the Full Court providing its reasons for judgment, even when the appeal was heard.  Moreover, there also seemed a consensus of the likelihood that the Full Court, on a successful appeal, would remit the matter for rehearing before a Judge.  All of these matters pointed very strongly towards delay.  Ms Longbottom, in particular, emphasised the potential adverse effect on the children of having supervised time imposed on them pending what is potentially a very long process of appeal.

9. To the extent that submissions were made suggesting or implying that the appeal lacked merit, the Court does not agree that, even on a preliminary assessment of the strength of the proposed grounds of appeal, that the Mother does not have an arguable case.  It is an appeal against a discretionary judgment but that does not by itself contraindicate it being an arguable case.

10. Both Ms Gillies and Ms Longbottom emphasised the potential adverse implication for X and Y of staying the Orders in circumstances where they have already been implemented, and where a risk assessment has been undertaken and resolved in favour of the children spending time with their father.  If the welfare of the children truly “is the paramount consideration” on the evidence before the Court, no conclusion would be available to it other than that which is embodied in the reasons of judgment of 22 January 2016.  They both argued that further changes to the arrangements for the children to spend time with their father could not possibly be in their best interests, particularly when one has regard to the chronology referred to in the reasons for judgment in terms of the history of their time with the father.  The Court accepts this submission.

11. The Court feels obliged to record, and indeed acknowledge, the concerns expressed by both Ms Longbottom and Ms Gillies about the evidence contained in the Mother’s Affidavit of 8 February 2016 in support of her stay.  She refers to further examples of the children’s sexualised behaviours and to further disclosures.  What the Mother does not tell the Court in her Affidavit is that, on the very day when judgment was handed down (22 January 2016), she made another report to JIRT which resulted in Y being reinterviewed and which resulted in JIRT once again reporting that the allegation was not substantiated.  Moreover, the Mother was actually informed about this on 4 February but makes no reference to this in the material she puts before the Court.

12. Ms Longbottom, as Independent Children’s Lawyer, quite appropriately and in a neutral fashion, simply placed this information before the Court.  The Mother did not cavil with any of the information.  Ms Gillies, on behalf of the Father, suggested that the Mother’s very selective disclosure to the Court reflected on the lack of her good faith.  Mr Dura, on behalf of the Mother, conceded that it is of concern when one party comes to the Court and does not “put all the cards on the table” but denies that it affects the Mother’s good faith in the present context.  He emphasised the Mother’s concerns were seriously advanced.

13. From the Court’s perspective, and putting aside the issue of the Mother’s obligation to disclose these matters to the Court, there is a pattern of evidence that is simply being repeated.  There is nothing new.  These are matters that were considered in the reasons that led to the Orders being made.  Whilst it is of concern that the children may well be displaying sexualised behaviours and making disclosures, it is reassuring that the appropriate authorities have been involved and decided not to intervene further.  The Mother is convinced that there is a risk of harm to the children.  The Court has objectively assessed this risk and concluded, albeit on an interim basis, that the evidence does not establish risk.  The Mother’s seeming determination to prove the Court wrong, as well intended as it may well be, is another reason to decline the stay.  The risk to these children has been assessed.

14. There is no basis for granting the stay.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date:   22 February 2016