Maddigan and Geary (No 2)

[2016] FamCA 570

FAMILY COURT OF AUSTRALIA

MADDIGAN & GEARY (NO 2) [2016] FamCA 570

FAMILY LAW – STAY APPLICATION – Where the mother seeks a stay of final parenting orders – Where those orders provided for the children to move to live with the father and spend substantial and significant time with the mother after a short initial embargo period – Where the mother’s appeal would not be rendered nugatory by dismissal of her stay application – Where the children will soon begin spending time with the mother in accordance with the final orders – Where it would cause considerable disruption to the children to again reverse their residence pending the outcome of the mother’s appeal – Where such a vacillation in the children’s residences would not be in their interests – Mother’s stay application dismissed

Family Law Act 1975 (Cth), 65DAA

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Australian Coal & Shale Employees’ Federation v The Commonwealth (1956) 94 CLR 621
Federal Commissioner of Taxation v Myer Emporium (No. 1) (1986) 160 CLR 220
Jennings Constructions Limited v Burgundy Royale Investments Pty Limited (No. 1) (1986) 161 CLR 681
JRN & IEG (1998) 72 ALJR 1329
Sheldon & Weir (Stay Application) [2011] FamCAFC 5
Trahn & Long (No 2) [2008] FamCAFC 194

APPLICANT: Ms Maddigan

RESPONDENT: Mr Geary

INDEPENDENT CHILDREN’S LAWYER: Ms Burgess, Legal Aid ACT

FILE NUMBER: CAC 2054 of 2010

DATE DELIVERED: 16 June 2016

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 16 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Duane

SOLICITOR FOR THE APPLICANT: Mr Cameron, Dobinson Davey Clifford Simpson

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Mr Ridge, Barker & Barker

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Burgess, Legal Aid ACT

Orders

1. The Application in a Case filed on 1 June 2016 is dismissed.

2. The father’s application against the mother for his costs of and incidental to today’s hearing is reserved for a period of 28 days after judgment is pronounced in appeal number EA81/2016.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Maddigan & Geary (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: CAC 2054 of 2010

Ms Maddigan

Applicant

And

Mr Geary

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

1. By Application in a Case filed on 1 June 2016, the applicant mother seeks a stay of the parenting orders made by me on 28 April 2016. 

2. For many years prior to the pronouncement of those final orders, the parties had repeatedly engaged in litigation to settle parenting arrangements for their children. The orders made on 28 April 2016 effected a reversal of the antecedent residential arrangement. The orders provided for the children to move to live with the father instead of with the mother and to spend substantial and significant time with the mother in lieu of with the father. An additional order was imposed, importing a restriction on any interaction between the children and the mother for an initial period of about eight weeks for the purposes of enabling the children to settle as seamlessly as possible into their new residence with the father. 

3. The mother appealed those orders. She has applied for expedition of the hearing of her appeal, which expedition application has been heard but not yet determined, and she now seeks a stay of the orders made in April 2016 pending the determination of her substantive appeal. The mother’s proposal is that all orders be stayed unconditionally so that the net effect would be a return by the parties to a regime dictated by interim orders previously made in December 2015, which provided for the children to live with her and to spend substantial amounts of time with the father. 

4. The mother’s stay application is opposed by both the father and the Independent Children's Lawyer.

Evidence 

1. In support of her stay application, the mother reads her affidavit filed on 1 June 2016. That is the only evidence adduced in the case. 

2. Neither the father nor Independent Children's Lawyer rely upon any evidence. 

3. The stay application is to be determined by reference to the submissions made by the parties and the Independent Children's Lawyer in the context of the evidentiary background set out in the mother’s single affidavit.

Legal principles 

1. The principles relating to the determination of stay applications pending appeals are not the subject of dispute.

2. The discretion to stay the operation of orders should only be exercised where special circumstances exist which justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation pending the determination of any appeal.  Such special circumstances justifying a stay will exist where it is necessary to prevent the appeal from being rendered nugatory or for whatever other reason there is a real risk it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed (see Federal Commissioner of Taxation v Myer Emporium Limited (No 1) (1986) 160 CLR 220 at 222-223). The Court should also consider the prospects of the appeal and where the balance of convenience lies (see Jennings Constructions Limited v Burgundy Royale Investments Proprietary Limited (No 1) (1986) 161 CLR 681 at 685).

3. Those common law principles apply equally to judgments delivered in this jurisdiction, including judgments pertaining to parenting orders (see JRN & IEG (1998) 72 ALJR 1329; Sheldon & Weir (Stay Application) [2011] FamCAFC 5; Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106; Trahn & Long (No 2) [2008] FamCAFC 194).

4. The Court is entitled to assume that the decision which is the subject of the appeal is correct. Indeed, the Full Court must subsequently approach the appeal on the basis of a strong presumption that the decision is correct (see Australian Coal and Shale Employees' Federation v The Commonwealth (1956) 94 CLR 621 at 627).

5. With particular relevance to the stay of parenting orders, the welfare of the child is now considered a significant, but not the paramount, consideration.  Residential changes should desirably be limited as far as reasonably possible.  The Court should also consider whether the child’s present circumstances are satisfactory, the bona fides of the appeal, the apparent strength of the appeal, and the likely delay before the appeal is heard and determined.

Discussion

1. Turning then to the submissions and the evidence which ought be applied to those principles, I find as follows. 

2. I have no doubt the appeal filed by the mother is bona fides.

3. It was undoubtedly filed in a timely way.  However, of note is the slight delay in the filing of her stay application. Although her Notice of Appeal was filed within time on 25 May 2016, her application for a stay was not filed until a week later, on 1 June 2016. The mother was offered a hearing date in respect of her application two days later on 3 June 2016, but the offer was rejected by the mother. It was contended in submissions today that the mother was cognisant of the need for the father and Independent Children's Lawyer to have adequate notice of her application, but I pay that submission little heed. Stay applications are regarded as urgent applications.  No evidence was needed, nor likely needed, by the father or Independent Children's Lawyer to meet the mother’s application. As has transpired, their responses to her application were limited to their oral submissions in opposition. As a consequence of the mother’s disinclination to accept the earliest available hearing date, her application could not thereafter be heard and determined by me until today, 16 June 2016, in a busy duty list. Consequently, these reasons are prepared hastily on an ex tempore basis. 

4. Enquiries made by me through the Court would indicate that, even if the mother’s pending expedition application is not determined in her favour, it is likely that her appeal will be heard by a sitting of the Full Court conducted in Canberra in or about November 2016, entailing a delay between now and then of about five months. Counsel for the mother has informed the Court that the mother’s expedition application has already been heard by a judge of the appeal division, but no decision has yet been published in relation to that application.  If her expedition application is successful, axiomatically, the appeal will likely be heard before November 2016 and the wait for the mother will be lesser.

5. The submissions made by counsel on behalf of the mother focused on what was contended to be the strength of the mother’s appeal. 

6. Turning to the grounds of appeal set out within the mother’s Notice of Appeal filed on 25 May 2016, there are 18 grounds and, upon inspection, it would appear that all of the mother’s grievances relate to findings and conclusions contained within [109]-[115] of the primary judgment I produced on 28 April 2016. 

7. Although the mother’s counsel did not attempt to flesh out the asserted merit of all grounds, he concentrated on the asserted error of fact within [112] of my primary reasons for judgment. Relevantly, at [112] of the primary judgment, I found that the single expert witness in the proceedings altered her recommendation about the ultimate outcome for the children during her cross-examination.

8. In the report produced for the Court by the single expert in or about September 2015, the single expert recommended that the children remain living with the mother and that the children continue to spend substantial and significant time with the father. I acknowledge that at no point during her cross-examination did the single expert expressly resile from that recommendation and replace it with something different. However, a fair reflection of the totality of the oral evidence of the single expert appears inexorably to suggest that her view did change during the course of her successive cross-examinations by firstly the Independent Children's Lawyer, secondly the father, and lastly the mother.  That inference is adopted expressly by the Independent Children's Lawyer, who agrees the single expert did change her recommendation about the ultimate orders for the children. 

9. Advertence to the transcript of the cross-examination of the single expert is instructive, a copy of which is annexed to the mother’s affidavit.

10. The first cross-examination of the single expert was conducted by the Independent Children's Lawyer. 

11. At page 303 of the transcript, the Independent Children's Lawyer confirmed with the single expert that her recommendation at the time of writing her report some months before in 2015 was that the children live with the mother and spend alternate weekends (Friday to Monday) with the father. 

12. At page 312 of the transcript, the Independent Children's Lawyer attempted to summarise her understanding of the single expert’s evidence to that point, which was effectively that the children should still live primarily with the mother and spend some nights each fortnight with the father. The single expert agreed at that point in her cross-examination that, unless something had substantially changed since her assessment in August 2015, that would remain her view. However, significantly, during the course of the Independent Children’s Lawyer’s cross-examination (and specifically at pages 306-307 of the transcript) the single expert acknowledged that no particular division of time each fortnight, as between the mother and the father, would likely minimise the acrimony between the parties. The single expert told the Independent Children’s Lawyer that, from a psychological perspective, the ideal was to establish a stable base for the children where they felt they could be safe and have a consistent set of rules. 

13. The cross-examination of the single expert by the father then followed. 

14. At paragraph 321 of the transcript, the single expert accepted the proposition that the mother did not believe she consciously sought to alienate the children from the father but, nonetheless, the single expert admitted she entertained concerns that the mother was unconsciously alienating the children from the father. The single expert described that process as “subtle”. 

15. At paragraph 325 of the transcript, the single expert acknowledged again that, in her view, the mother was unconsciously influencing the boys against the father.  

16. At page 337 of the transcript, the single expert accepted as certain that the mother had either been deceptive or lacking in insight during her discussions with the single expert.

17. At paragraph 338 of the transcript, the single expert accepted the proposition that, paradoxically, the mother’s anxiety induced a situation in which the children needed to emotionally regulate her to control her anxiety – the inference being fairly available that the parent/child relationship had effectively been reversed in her household. 

18. At page 339 of the transcript, the father’s counsel put squarely to the single expert that the existing residential regime could be reversed, so that the children would instead live with the father and spend time with the mother. In response to that proposition the single expert said she did not think there would need to be any substantial transition if that was the ultimate outcome. She thought it could happen “in a fairly quick sense in this case” because they were already spending substantial amounts of time with the father. It is abundantly plain from that question and answer that the single expert was aware of the father’s proposal for a reversal of the residence and she was offering a recommendation about how that might be accomplished if the Court considered such to be the appropriate outcome. 

19. The cross-examination of the single expert by the mother’s own counsel followed. 

20. I asked the single expert, following upon propositions put by the mother’s counsel, whether the single expert meant that no matter how little unsupervised time the children spend with the father the existing situation with the mother would not get any better. The single expert agreed that is what she meant. She said she thought the mother was anxious and “she doesn’t want the kids to be with their father”. Clearly then, the single expert acknowledged that even if the children spent as little time with the father as the mother proposed, there would be no improvement.

21. Following upon that answer, at page 359 of the transcript, I posited to the single expert that her evidence to that point in time meant that the parenting options for the children were effectively narrowed to two, being either: first, reversal of the current parenting regime (which was the proposition of the father and ultimately the fall-back position of the Independent Children's Lawyer), or alternatively, complete elimination of the father from the children’s lives (even though the mother did not propose that outcome) because, having regard to what the single expert had already said, no matter how little time the children spent with the father the mother’s anxiety would remain elevated. The clear inference from the answers given by the single expert is that they were, indeed, the only two viable options left.

22. Although the single expert suggested that the options might be expanded if the parties submitted to some sort of therapy, she accepted that both parties had already indicated their disinterestedness in accepting further therapy and she accepted that the regime which she originally recommended in her earlier report had broken down repeatedly over the preceding five years. The single expert said she was “absolutely pessimistic” about the situation being any better if the children were left to live with the mother and spend substantial time with the father.

23. In conclusion, at page 360 of the transcript, when asked by the mother’s own counsel about what was being recommended, the single expert said “…what we do know is that the current state doesn’t work and the children are suffering as a result of that.” 

24. Having regard to the totality of that evidence, I do not accept the proposition put by the mother in this stay application that an error of fact was made about interpretation of the single expert’s evidence. The inferential change of position on the part of the single expert was, in my view, quite clear, as confirmed by the Independent Children's Lawyer. The appeal, in so far as it relies on that submission, is consequently not strong.

25. Even if it could be asserted on appeal with some semblance of authority that there was a mistake of fact made, as learned counsel for the mother concedes, that is not necessarily the end of the issue. The next question to then arise is whether the mistake affected the reasoning process. As I have already indicated, the single expert, in whose evidence the mother apparently reposes faith, agreed the parenting options were narrowed to two. The ultimate result imposed by the orders made on 28 April 2016 would likely have followed on the totality of evidence anyway, even if it could be successfully argued that the single expert did not clearly change her recommendation about the outcome for the children.

26. In any event, even if the single expert did adhere to the recommendation originally set out in her report, despite her apparently inconsistent admissions during cross-examination, I was not bound to accept her recommendation and implement it in the final orders. The whole purpose of vesting judicial power in judges is to require judges to make their own decisions based on all of the evidence. If Courts were bound to the acceptance of initial or modified recommendations of family consultants and single experts, there would be no need for judges.

27. It could not be rationally said that the mother’s appeal would be rendered nugatory by dismissal of her stay application. Because the mother did not accept the first available date for hearing of her stay application and it has now been dealt with some two weeks later (on 16 June 2016), the children will begin spending time with her from as early as next week (24 June 2016) in accordance with the orders made on 28 April 2016. The time they will spend with her will be “substantial and significant” within the meaning of that phrase in s 65DAA(3) of the Family Law Act 1975 (Cth).

28. As the father and Independent Children's Lawyer have both cogently submitted, the interests of the children are not advanced by bouncing them between households under different regimes. For reasons which I delivered with my orders in April 2016, I was satisfied that the best interests of the children warranted a reversal of the parenting regime. Those orders have been implemented. The children now live with the father. They will begin spending substantial and significant time with the mother from next week. Those orders will prevail until such time as the mother’s appeal is heard and determined. It would cause considerable disruption to again now reverse the children’s residence by returning them to the household of the mother and requiring them to spend substantial amounts of time with the father in circumstances where, if the mother’s appeal fails, they would again have their residence reversed by moving them back to the residential care of the father. I am not satisfied that such a vacillation in the children’s residences would be in their interests.  It would be far better for them to be settled in the current regime and if a further change is rendered necessary by the mother’s successful appeal so be it. 

29. For all those reasons, I am not satisfied that the stay application is efficacious and it will be dismissed. I therefore make the following orders.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 16 June 2016.

Associate: 

Date:  30 June 2016