MALONEY & MALONEY
[2011] FMCAfam 197
•15 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MALONEY & MALONEY | [2011] FMCAfam 197 |
| FAMILY LAW – Application for stay – to be filed in Registry where orders under appeal made – compliance with rule dispensed with – principles for considering a stay application – best interests of child not paramount but important – stay refused. |
| Federal Magistrates Court Rules 2001, rr.1.05, 1.06 Family Law Rules 2004, r.22.11 Family Law Act 1975, s.60CC |
| Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 Clemett and Clemett (1981) FLC 91-013 House v The King [1936] HCA 40 K and B (2006) FLC 93-288 |
| Applicant: | MS MALONEY |
| Respondent: | MR MALONEY |
| File Number: | LNC 314 of 2009 |
| Judgment of: | F. Turner FM |
| Hearing date: | 8 March 2011 |
| Date of Last Submission: | 8 March 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 15 March 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Coulter Roache |
| Counsel for the Respondent: | Mr Crawford |
| Solicitors for the Respondent: | Bruce H Crawford |
ORDERS
That Rule 22.11(3) of the Family Law Rules 2004 be dispensed with in so far as it requires an application for a stay to be filed in the same Registry in which the order under appeal was made.
The Application in a Case filed 24 February 2011 seeking a stay is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Maloney & Maloney is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
LNC 314 of 2009
| MS MALONEY |
Applicant
And
| MR MALONEY |
Respondent
REASONS FOR JUDGMENT
This hearing involves an application by the wife for a stay of the final parenting orders made by Federal Magistrate Roberts at Launceston on 28 February 2011.
Mr Hogan appeared for the applicant wife and Mr Crawford for the respondent husband.
The parties were married [in] 2001 and separated on a final basis on
1 May 2004. There is one child of the relationship (to be referred to herein as “B”) who was born [in] 2002.
The parties were living in Tasmania when B was born. After separation the wife established a home in Melbourne, and moved regularly between Victoria and Tasmania. B spent regular time with both parents travelling frequently between Tasmania and Victoria, in line with a parenting plan entered into on 19 May 2009.
On 10 March 2010 the husband sought orders in similar terms to the provisions in the parenting plan; the wife’s response sought that B live with her and spend time with the husband.
Therefore from the date of her birth until separation in 2004 B lived with both parents; from 2004 until the interim orders on 30 April 2010 B spent three weeks about with each parent; from the interim orders until January 2011 B lived with the wife and spent time with the husband for all of some school holidays and half of the other holidays and for one weekend a month; Since final orders on 28 January 2011
B has lived with the husband and is to spend time with the wife for all of some school holidays and for half of other school holidays, and for a minimum of two weekends in each school term.
The final hearing occurred on 3 and 4 November 2010. Pursuant to the interim orders, B was spending time with the husband when the decision was delivered and final orders were made on 28 January 2011.
Federal Magistrate Roberts ordered that the parties have equal shared parental responsibility for B; that B live with the husband in Tasmania and spend time with the wife in Victoria.
On 21 February 2011 the wife lodged an appeal against the final orders.
Relevant Rules of this Court provide:
1.05 Application
(1)It is intended that the practice and procedure of the Federal Magistrates Court be governed principally by these Rules.
(2)However, if in a particular case the Rules are insufficient or inappropriate, the Court may apply the Federal Court Rules or the Family Law Rules 2004 or the Family Law Rules 1984, in whole or in part and modified or dispensed with, as necessary.
1.06 Court may dispense with rules
(1)The Court may in the interests of justice dispense with compliance, or full compliance, with any of these Rules at any time.
(2)If, in a proceeding, the Court gives a direction or makes an order that is inconsistent with any of these Rules, the direction or order of the Court prevails in that proceeding.
Pursuant to r.1.05(2) the Court will apply r.22.11 of the Family Law Rules 2004 (“FL Rules”) which provides as follows:
(1)The filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision.
(2)If an appeal has been started, or a party has applied for leave to appeal against an order, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application relates.
(3)An application for a stay must be filed in the Registry in which the order under appeal was made and be heard by the Judge, Federal Magistrate or Magistrate who made the order under appeal.
Note 1 Under subsection 55 (3) of the Act, a divorce order is stayed until after an appeal against it is determined or discontinued.
Note 2 An application for a stay may be listed before another judicial officer if the judicial officer who made the order under appeal is unavailable (see rule 1.13).
The husband sent written submissions to the Registrar of the Court raising various objections to the proceedings, including that r.22.11(3) of the FL Rules requires that, the final orders having been made in the Launceston Registry of the Court, the application for a stay must be “filed in” that Registry, and be heard by Federal Magistrate Roberts.
Federal Magistrate Roberts is away from the Registry and unavailable to hear the application before April 2011. The matter has been listed before me pursuant to FL Rules 1.13 and 22.11 Note 2.
As to the requirement to file the application for a stay in the same Registry, the Court decides that as both parties appeared and were represented in Melbourne on 3 March 2011, and as the matter could therefore proceed, in the interests of the administration of justice, compliance with FL Rule 22.11(3) is dispensed with. The Court does that pursuant to Federal Magistrates Court Rules 2001 (“FMC Rules”) 1.05(2) and 1.06 observing that FMC Rule 1.05(2) contains specific provision to dispense with the Rules of the Family Court in whole or in part.
Mr Crawford did not press any of the other objections contained in the husband’s written submissions.
Principles to determine whether a stay should be granted
The wife filed written submissions in support of her application for a stay. Mr Hogan submits that the factors to be considered are set out in Clemett and Clemett (1981) FLC 91-013 at 76, 175 as follows:
“In determining whether a stay should be granted, the welfare of the child is the paramount consideration. 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. If the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt with within a reasonable time and the present circumstances of the child are satisfactory, it will be appropriate to grant a stay of proceedings for at least a short period.”
Mr Hogan submits that this principle has been applied in numerous decisions, notably:
·Re Evelyn (No 2) (1998) FLC 92-817
·DS, L and DS, J (2003) FLC 93-165
·K and B (2006) FLC93-288
He notes that Re Evelyn (No 2) and K and B were both decisions of the Full Court of the Family Court. DS, L and DS, J was a decision of the Federal Magistrates Court at Parramatta.
Mr Hogan referred to K and B (2006) FLC 93-288 at [19] and [20] as follows:
The jurisdiction to grant a stay was subject of recent discussion by the Full Court in EJK and TSL [2006] FamCA 730. The Full Court said in dealing with an application to permanently stay parenting proceedings in a case involving issues of forum non conveniens:
‘74. We have already referred to the provisions in the Act relative to the granting of a stay, and the case law which supports the exercise by the Court, in an appropriate case, to grant a stay pursuant to its inherent power. We accept that such inherent power is to be distinguished from the exercise of jurisdiction under a particular provision of Part VII. We accept as correct the reasoning in B v B (Re Jurisdiction) (supra) that a stay cannot be categorised as a parenting order as defined in the Act. It follows, therefore, that if some or all matters involving children are not in a special category, if it is appropriate for a Court, pursuant to its inherent power to grant a stay, then the best interests principle is not the paramount consideration, although the best interests of a child may, in a particular factual situation, be highly relevant or deserving of the greatest weight in considering whether the Court is a clearly inappropriate forum.’
In dealing with a subsequent stay application in the same case (EJK and TSL (No 2) [2006] FamCA 806) the Court noted the relevant principles to be applied:
‘16. It facilitates our discussion to set out the principles espoused in Clemett and Clemett (supra) to which we have already referred. At 76,175 Nygh J said:
“In determining whether a stay should be granted, the welfare of the child is the paramount consideration. 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. If the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt with within a reasonable time and the present circumstances of the child are satisfactory, it will be appropriate to grant a stay of proceedings for at least a short period. In this case we are satisfied that the appellant is appealing seriously on the merits of the case, that an appeal can be (and has in fact been) expedited within a reasonable time and that the child is properly looked after by the father. There is no indication that his Honour gave any consideration to those matters. If his Honour did, we are of the view he did not give sufficient consideration to them. For those reasons, we are of the view that his Honour exercised his discretion wrongly and consequently that the appeal should be upheld.”
17. Although we note that this decision pre-dates the Family Law Reform Act 1995 (Cth) when the whole of Part VII of the Family Law Act 1975 (Cth) (“the Act”) was subject to “the best interests test”, we accept the principles espoused are relevant to this application, and the child’s best interests, even if not the paramount consideration, on the facts of this case are a significant consideration. The importance of the consequences for a child of granting or refusing a stay are well recognised. In JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332 Kirby J said:
“In my opinion, some adaptation of the rules stated in the cases governing stays in this Court must also occur in cases which affect significantly third parties who are not parties before the Court and, in particular, children whose welfare must always be in the mind of a court in making an order affecting their interests.”’
It is clear from these decisions the child’s best interests are a significant consideration, but not the paramount consideration.
Mr Crawford submits that the principles to be applied in determining an application for a stay of orders in parenting proceedings are set out in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 at 18 as follows:
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] HCA 13; (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] HCA 84; [1986] HCA 84; (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:
o 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;
o a person who has obtained a judgment is entitled to the benefit of that judgment;
o a person who has obtained a judgment is entitled to presume the judgment is correct;
o the mere filing of an appeal is insufficient to grant a stay;
o the bona fides of the applicant;
o 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;
o 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;
o some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
o the desirability of limiting the frequency of any change in a child’s living arrangements;
o 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
o the best interests of the child the subject of the proceedings are a significant consideration.
Mr Hogan submits that principles 2, 3, 6 and 7 are not relevant to applications for a stay in parenting matters. Support for the proposition that not all of these factors are applicable to cases involving children is found in K and B (supra) at [21]. It is stated there that:
“The principle relating to the prima facie position of the correctness of a judgment is not in doubt. This principle is especially apposite to commercial cases…The principle, whilst persuasive, is not always applicable to cases involving children”.
The principle referred to is one of those set out in Aldridge (supra).
There is therefore some doubt as to the applicability of the third principle in Aldridge. The Court can see merit in Mr Hogan’s objections to the other principles also.
Principle 2 relates, to a party being entitled to the benefit of a judgment. Principle 6 relates to the balance of convenience and the competing rights of the parties. Both must be subordinate to the child’s best interests.
Principle 7 by its terms is of little relevance in this case. If the wife succeeds in her appeal, it will not have been rendered negatory by the refusal to grant a stay, which would have resulted in the earlier return of B to her.
The principles that remain from Aldridge are therefore:
othe 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;
othe mere filing of an appeal is insufficient to grant a stay;
othe bona fide of the applicant;
osome preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
othe desirability of limiting the frequency of any change in a child’s living arrangements;
othe 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
othe best interests of the child the subject of the proceedings are a significant consideration.
The Full Court in Aldridge stated that the principles “include” those set out in its list. The list is therefore not exhaustive. Mr Hogan submits that the arrangement that applied from the date of the interim orders until January 2011 should be restored so that B lives with the wife. This submission ignores the fact that B is now living with the husband as a result of final orders made after a full hearing on the merits.
The Court finds that the onus for the stay is on the applicant. The mere filing of an appeal is insufficient.
There is no doubt about the bona fides of the applicant.
Strength of the Appeal
The Court is required to give some preliminary assessment of the strength of the appeal.
The grounds of the Appeal are:
1.His Honour erred in failing to take into account the fact that the child the subject of the proceedings had resided with the mother pursuant to an Interim Order made on 30 April 2010, a period of approximately nine (9) months prior to his Honour's judgement delivered on 28 January 2011, in circumstances where his Honour found as a matter of fact that:
1.1the child had a warm and loving relationship with both parents (paragraphs 57, 58 and 68);
1.2the child had a close and comfortable relationship with the mother’s partner (paragraph 70);
1.3he had no concerns in relation to the child’s physical needs in either parents household, rejecting any suggestion that the child was underfed when she was with the mother (paragraph 79); and
1.4the child’s educational needs would be adequately met in either household (paragraph 79).
2.His Honour erred in finding that the mother’s attitude to parental responsibility was “somewhat below the Australian societal norm” by reason that:
2.1she had worked as a prostitute between 2005 and 2009 (even though his Honour found that the child was properly looked after by others when she was so engaged) (paragraph 86);
2.2she had displayed a large sticker on the rear window of her car (paragraph 86); and
2.3she had posted a suggestive photograph of herself on her Twitter page and on another dating site (paragraph 86) in circumstances where there was no evidence or any finding that the child was aware of these matters or was in any way adversely affected or prejudiced by them and against His Honour’s finding that:
2.4the child had a warm and loving relationship with both parents (paragraph 57, 58 and 68);
2.5he had no concerns in relation to the child’s physical needs in either parents household (paragraph 79); and
2.6the father decided to obtain some more damaging evidence against the mother after reading the Family Report and, in particular, the statement herein that neither parent “raised concerns about the other parents lifestyle including employment commitments” (paragraph 52).
3.His Honour erred in making an Order that the child live with the father in circumstances where found that:
3.1from the outset the father demonstrated a remarkable lack of insight into the harm that the Parenting Plan could do (paragraph 76) whilst noting (paragraph 77) that the Family Consultant agreed with the mother’s counsel that the mother appeared to have had a greater insight into the affects on the child of the operation of the Parenting Plan; and
3.2he had some concerns about the father’s ability to fully appreciate the child’s emotional needs without having considered or properly considered the mother’s ability to fully appreciate the child’s emotional needs.
4.Such other grounds as may be raised once the transcript of proceedings is available.
Mr Hogan emphasised that the Grounds of Appeal had been drawn without the benefit of the transcript, and will be refined.
Ground One
Ground one alleges that Federal Magistrate Roberts failed to take into account that B resided with the wife for the nine months between the interim orders (30 April 2010) and the final orders (28 January 2011).
To put ground one into context, the Court finds:
·That B lived with both parents from 19 August 2002, until, 1 May 2004.
·From 1 May 2004 until 30 April 2010 B spent approximately equal time with each parent.
·From her birth until 30 April 2010 (when she was seven) she had spent roughly equal time with both parents.
·From 30 April 2010 until 28 January 2011 B lived with the wife (approximately nine months).
·From 28 January 2011 to date B has lived with the husband (approximately 1.3 months).
·The wife has been the primary carer for approximately 7.6 months longer than the husband.
Federal Magistrate Roberts did not refer in his reasons to B living with the wife from April 2010 until January 2011. It could be a factor within s.60CC(3)(m) of the Family Law Act1975 (the “Act”) but that was a matter for judgment by Federal Magistrate Roberts. He may have taken the view that it was not relevant, given the context of the period of time with each parent, and given that it was the result of an interim judgment. However, it may be an event or circumstances that happened since separation that the Court must consider s.60CC(4A).
The ground has some chance of success but consideration of it may not lead to the Family Court upholding the appeal, when consideration is given to the amount of time B has spent with the husband. The “event” could be outweighed by the fact that after a full hearing Federal Magistrate Roberts ordered that B change residence and live with the husband.
Ground Two
Ground two alleges that Federal Magistrate Roberts made an error of fact in finding that the mother’s attitude to parental responsibility was somewhat below “Australian societal norm” (Decision [91]).
The attitude to parental responsibility is a s.60CC(2)(i) factor, and is included in s.60CC(4). It is a relevant factor and a Court on appeal may find that there was material before Federal Magistrate Roberts to support that finding.
The Court assesses ground two as being arguable at best. That finding of fact was one for Federal Magistrate Roberts to make and it is unlikely that the appellate Court will interfere with it (House v The King (post)).
Ground Three
Ground three challenges the decision that B should live with the husband, Federal Magistrate Roberts having found that the husband lacks insight into the harm the parenting plan could do, and that he had concerns about the husband’s ability to fully appreciate the child’s emotional needs.
This ground is arguable at best, given the thorough assessment pursuant to s.60CC made by Federal Magistrate Roberts, and given that the appeal is from a discretionary judgment. “This is an appeal from a discretionary judgment. There are well established principles on the limits of interference by an appellate court with such a judgment (see House v The King [1936] HCA 40; (1936) 55 CLR 499; Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513; (1979) FLC 90-719.” Cited in Aldridge & Keaton supra at [17].
Overall, the Court assesses the appeal as arguable at best and not strong.
The court considers next the principle of the desirability of limiting the frequency of any change in the child’s living arrangements.
(a)Changes in the child’s living arrangements if a stay is refused:
·The child lived in Victoria with the wife from 30 April 2010.
·Move one – The child spent time in Tasmania since before the final orders and has lived there since 28 January 2011.
·The child will live in Tasmania until the appeal is determined. If the appeal is dismissed, the child will remain in Tasmania.
·Move two – If the appeal is upheld the child will return to Victoria.
(b)Changes in the child’s living arrangements if a stay is granted:
·The child lived in Victoria with the wife from 30 April 2010
·Move one – The child spent time in Tasmania before the final orders and has lived there since 28 January 2011.
·Move two – The child would return to Victoria upon the grant of a stay
·Move three – If the appeal is dismissed the child would return to Tasmania.
·If appeal is upheld the child would stay in Victoria.
As can be seen there is more potential for a change in the child’s living arrangements if a stay is granted. This is a very significant factor. There is uncontested evidence that the husband told B that as a result of the final orders she was to live with him (Affidavit of Respondent sworn
2 March 2011 para.4). It is highly desirable for stability in the child’s life to limit the frequency in changes in her living arrangements.
The next principle is the period of time in which the appeal can be heard?
Mr Hogan was unable to advise the Court of when the appeal may be heard by the Family Court. His assessment is that “it is likely that there will be a hearing in the short term”. The Court has not and should not make enquiries of the Family Court. The Court is unable to consider this principle, other than to decide that the existing arrangements for B are satisfactory.
The next principle is that the best interests of the child are a significant consideration.
The wife has relocated since separation, so that if a stay is granted and B returns to Victoria, she will attend a different school from the one she attended after the interim orders. B attended [T] School at [suburb omitted] and would attend [O] School (Affidavit of Applicant sworn 17 February 2011 para.11).
If the stay is refused B will continue to attend [S] School. Mr Hogan submits that the Court should place little weight on the letter from that school (Annexure B to the Affidavit of the respondent sworn 2 March 2011) as the signatories have not been cross examined. However both B’s teacher and the Principal have signed the letter; and express joint views. The Court is willing to give some weight to the letter. The finding of more significance is that if a stay is not granted B will continue at the same school; if a stay is granted she will have to attend a new school. If the appeal is dismissed she will not have to move schools again. It is best that the frequency of changes in schooling be limited.
Section 60CC
Section 60CC(2)(a). B can have a meaningful relationship with both parents, no matter which one she lives with.
Section 60CC(2)(b). There are no issues of physical or psychological harm, although the Court notes the possible effects of B being exposed to the wife’s activities, being the sticker on the car, and the computer with automatic access.
Section 60CC(3)(a). B has not expressed a strong preference to live with either parent. She will miss the one she does not live with.
Section 60CC(3)(b). B has a good relationship with both parents and with the wife’s new partner.
Section 60CC(3)(c). Both parents have been willing to facilitate and encourage a close relationship between B and the other parent.
Section 60CC(3)(d). The effect of a stay will be another change in where B lives and a change in the school she attends. Both those results are undesirable and the Court gives them great weight.
B has not been fully separated from either parent as she has spent significant time with the non-resident parent. The grant of a stay will not result in a greater degree of separation from either parent than has occurred in the past.
Section 60CC(3)(e). The cost of airfares has not prevented B from spending time with the non-resident parent. A stay will not impact on this factor apart from it being undesirable to uproot B again from a stable environment.
Section 60CC(3)(f). Both parents are reported to have the capacity to provide for B’s intellectual and emotional needs.
Section 60CC(3)(g). B’s maturity, sex, lifestyle and background have not been issues in this matter.
Section 60CC(3)(h). Not relevant.
Section 60CC(3)(i). Both parents demonstrate a good attitude to B and to the responsibilities to parenthood. However there is material to indicate that the wife has left four daughters in the care of others in the Philippines.
Section 60CC(3)(j). Not relevant.
Section 60CC(3)(k). Not relevant.
Section 60CC(3)(l). Not relevant.
Section 60CC(3)(m). The Court has considered the facts or circumstances that it considers relevant.
Taking into account the principles set out in Aldridge and Clemett the Court decides that the application for a stay should be dismissed and orders accordingly.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of F. Turner FM
Associate:
Date: 15 March 2011
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