Matthews and Bender (No 3)

[2013] FamCA 828

FAMILY COURT OF AUSTRALIA

MATTHEWS & BENDER (NO. 3) [2013] FamCA 828

FAMILY LAW – CHILDREN – Stay application pending appeal – where it was ordered that the child live with the father –  where the mother seeks to return to previous orders – whether granting a stay would render the appeal nugatory – child’s best interests

Family Law Act 1975 (Cth)

APPLICANT: Ms Bender

RESPONDENT: Mr Matthews

INDEPENDENT CHILDREN’S LAWYER: Glezer Lanteri & Associates Pty Ltd

FILE NUMBER: MLC 3524 of 2008

DATE DELIVERED: 25 October 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 18 & 24 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Fisken

SOLICITOR FOR THE APPLICANT: Kennedy Partners

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Hams

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Glezer Lanteri & Associates Pty Ltd

ORDERS

IT IS ORDERED THAT

1. The wife’s Application in a Case filed 15 October 2013 seeking a stay of the orders made 27 September 2013 is dismissed.

2. Any party seeking costs shall file and serve written submissions within 28 days of the date of this order, any reply thereto be filed and served within a further 14 days, and any additional submissions in answer be filed and served within a further 7 days.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Matthews & Bender 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 MELBOURNE

FILE NUMBER: MLC 3524 of 2008

Ms Bender

Applicant

And

Mr Matthews

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. On 27 September 2013 I delivered judgment and made parenting orders following proceedings before me between 15 and 19 July 2013 inclusive and on 9 and 12 August 2013. The orders I made included orders that the father have sole parental responsibility for the child of the marriage, who is now eight years of age, that the child live with the father, that the mother’s time with the child be reserved and that the father have liberty to remove the child from her current school and enrol her in another school of his choosing. I made interim orders that the mother be restrained from attending at the child’s current school or any school in which the father may enrol her save with the written consent of the father or by Court order, that an updated report be prepared by the Family Consultant not later than four months from the date of my orders, and that the matter be listed for mention before me on 11 January 2014.

2. On 11 October 2013 the mother filed a Notice of Appeal and on 15 October 2013 she filed an Application in a Case seeking a stay of my orders pending the determination of her appeal. The mother’s application for a stay was first listed for hearing before me on 18 October 2013. On that date Ms Fisken of counsel who appeared on behalf of the mother sought, in the alternative, a stay of the order permitting the father to remove the child from her current school pending the determination of the mother’s appeal. The mother filed an affidavit in support of her application on 15 October 2013 however, as Ms Fisken conceded, it read more like an expansion or clarification of the grounds of appeal than an affidavit in support of the stay. The father opposes the grant of a stay of my orders, as does the Independent Children’s Lawyer (“the ICL”).

3. The history of this matter is set out in some detail in my reasons delivered on 27 September 2013, however I propose to repeat some of that history so as to put in context the submissions made by the parties with respect to this application. The parties in this case were married in late 2003 and separated in July 2007. They have only one child, who was two years of age when they separated. The child lived with her mother following her parents’ separation and has attended a private school near the mother’s home since commencing her schooling. 

4. As described in my reasons, the matter has “a long history of allegations, primarily made by the mother against the father, conflict and litigation with respect to the father’s relationship with [the child] … including proceedings in what was then the Federal Magistrates Court, this Court, intervention order proceedings and criminal proceedings.” I also noted that a significant feature of the case was that, although the mother’s allegations against the father had either not been accepted or substantiated, it was her case before me that the father had abused the child both sexually and physically, had failed to protect the child from sexual abuse by her paternal grandfather, and was a neglectful and incompetent parent. I found that the allegations made by the mother were not substantiated but that the child was at risk of psychological abuse by the mother. 

5. At the conclusion of the hearing before me I made an order requiring the mother to deliver the child to the Manager of Child Dispute Services of this Registry on the date upon which I delivered judgment. My orders made 27 September 2013 included an order that the Family Consultant or her nominee meet with the child and explain to her the effect of my orders prior to releasing the child into the father’s care. The child has been living with the father since that date.

6. On 18 October 2013, the first day of the hearing of this matter before me, the father submitted that he had not had an opportunity to file any answering material as to the child’s transition to his care and the arrangements he has made for her care and, in particular, the arrangements he has made for her schooling. Although he could have given oral evidence that day in relation to these matters I determined that in fairness to the mother these were matters which needed to be on affidavit and that she should have time to consider the father’s evidence. It was on that basis that I ordered that the father file an affidavit and adjourned the matter for further hearing before me on 24 October 2013.

7. I was also advised that arrangements had been made to enable Dr J to make an assessment of whether she or some other counsellor should provide the child with ongoing counselling and what form that counselling should take. The arrangement with Dr J was for the child to attend three sessions, the first of which had been scheduled for 19 October 2013. Ms Fisken requested that the ICL obtain feedback from Dr J following that first counselling session and, in particular, in relation to the proposed change of school.

8. Dr P was on notice and available to give evidence but was not required to by any of the parties.

Legal Principles

1. The law in relation to the granting of a stay is well settled. The Full Court in Trahn & Long (No 2) [2008] FamCAFC 194 (“Trahn & Long (No 2)”) set out the relevant principles at [38] as follows:

   The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter included 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 “special” or “exceptional” circumstances;

   ·a person who has obtained a judgment is entitled to the benefit of that judgment;

   ·the person who has obtained a judgment is entitled to presume the judgment is correct;

   ·the mere filing of an appeal is insufficient to ground 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 the 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 a stay for a short period of time; and

   ·the best interests of the child the subject of the proceedings.

2. In Friscioni & Friscioni  [2009] FamCAFC 43 the Full Court again set out the relevant principles at [53] - [57] as follows:

   53.This is an appeal against a discretionary judgment and in determining such an appeal there is a strong presumption in favour of the correctness of the decision.  The limits on interference by an appellant court with such a judgment are well established in the authorities.  It is not enough that the appeal court considers that, if it had been in the position of the court below, it would have reached a different outcome.  It must be established that there has been some error made in exercising the discretion.  It may be shown that there has not been a proper exercise of judicial discretion if in making the decision the primary judge acted upon a wrong principle; was guided or affected by extraneous or irrelevant matters, was mistaken as to the facts, did not take into account some material consideration or gave inadequate weight to relevant considerations.  It may not appear how the result embodied in the order was reached, but if upon the facts the result is unreasonable or plainly unjust it may be inferred that in some way there has been a failure properly to exercise the judicial discretion: House v The King (1936) 55 CLR 499 (per Dixon, Evatt and McTiernan JJ) at 504-5.

   54.There can be no stay of proceedings or the enforcement of a decree pending an appeal unless an order is made to the contrary and the mere filing of an appeal is not sufficient to ground a stay.  This recognises that the successful litigant should not be deprived of the benefit of the litigation unless it is appropriate: Kelly and Kelly (1981) FLC 91-007 per Fogarty J. Thus the making of an order for a stay is wholly discretionary and the circumstances that would justify an order for a stay depend on the circumstances of each case. The onus of establishing a proper basis for a stay is on the applicant for the stay. Factors that may be taken into account in exercising the discretion are well settled and include what has been described as a “substantial factor” Trahn and Long (No 2) (supra) namely whether there is a real risk that to deny a stay would render a successful appeal nugatory or would make it impossible or impractical to restore the situation.  However the hardship that would be suffered by an unsuccessful applicant for stay must be weighed against the hardship that would otherwise be suffered by the unsuccessful respondent to the application.  In Jennings Construction Ltd v Burgundy Royale Invetsments Pty Ltd [No 1] (1986) 161 CLR 681 Brennan J at 685 included as factors relevant to take into account “whether the grant of a stay will cause loss to the respondent; and …where the balance of convenience lies”: see also De Lewinski v Director General, New South Wales Department of Community Services (1996) FLC 92-678 per Gummow J. Other considerations are the grounds and merits of the appeal, any undue delay between the time the original order was made and the filing of the application for a stay; the bona fides of the applicant for the stay and the length of time it will take for the appeal to be heard: Carlin and Carlin (1977) FLC 90-320; Kelly v Kelly (supra); Clemett and Clemett (supra); Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685; The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (1986) 160 CLR 220 at 230; Jennings Construction Ltd v Burgundy Royale Invetsments (sic) Pty Ltd [No 1] (supra); De Lewinski v Director General, New South Wales Department of Community Services (supra); and JRN & KEN v IEG & BLG (supra).  Some of the factors have been variously expressed.  For example, in Clemett Nygh J identified as a factor whether the appeal was not a mere delaying tactic.  In Trahn and Long (No 2) in relation to consideration of the merits of the appeal the Full Court described it as “some preliminary assessment of the strength of the proposed appeal-whether the appellant has an arguable case”: see also JRN & KEN v IEG & BLG (supra) per Kirby J at 1332.

   55.In cases where a stay is sought of parenting orders pending an appeal against those orders it has long been recognised that there are other factors that may be relevant.  This was recognised by Kirby J in JRN & KEN v IEG & BLG (supra) who said at 1332: “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”.  In other words it is important to consider the “consequences for a child of granting or refusing a stay”: EJK and TSL (No. 2) (supra) per the Full Court (Coleman, May and Boland JJ) and K and B (2006) FLC 93-288 at 32 per the Full Court (Warnick, May and Boland JJ).

   56.In Clemett and Clemett (supra) Nygh J said at 76,175:

   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.

   57.In Trahn and Long (No 2) (supra) the Full Court included as “principles” the following:

   ·    the desirability of limiting the frequency of any change in a child’s living arrangements may support the granting of a stay for a short period of time; and

   ·    the best interests of the child the subject of the proceedings.

   It may be that these are not separate factors but that in the context of consideration of the best interests of a child it is desirable to limit the frequency of changes in the living arrangements for a child.

Merits of the Appeal

1. I am mindful of the fact that the mother’s solicitors have only recently received instructions to act on her behalf. The wife’s solicitors did not prepare the Notice of Appeal and have had only limited time to consider the matter. Ms Fisken raised the possibility of an amended Notice of Appeal being filed once she and her instructors have had the necessary time to consider the matter and advise the mother as to the merits of the appeal, however she also conceded, properly in my view, that I should have regard to the Notice of Appeal as currently filed in reaching my decision in relation to this application. 

2. The mother’s Notice of Appeal identifies the following grounds of appeal:

   2.(sic) The Judge made a finding of fact that the Mother suffered Parental Alienation Syndrome which is not a recognised condition or recognised psychiatric condition.

   3.The Judge failed to place sufficient weight on the risks and harm to the child and on the possibility of the child suffering anxiety and depression in the short and long term and on the enormous psychological damage the child might suffrer (sic) due to the sudden change of residence without any warning; (sic)

   4.The Judge placed excessive weight on the Recommendations (sic) of the wtirer (sic) of the Family Report and not sufficuent (sic) weight on the recommendations of the child’s psychologist.

   5.The Judge failed to give sufficient weight as to the best interests of the child in respect to maintaining her happiness and stability.

   6.The procedural orders of the Judge restricted the Mother’s ability to call a witness thus denying her natural justice.

3. An evaluation of the prospects of success of the mother’s appeal for the purposes of this application does not entail the same detailed assessment or analysis of the issues as the hearing of that appeal by the Full Court. Nor is my assessment of the merits of the appeal in any way determinative of the outcome of that appeal.

4. The first ground of the appeal is that I erred in that I made a finding of fact that the mother suffered Parental Alienation Syndrome, which is not a recognised psychiatric condition. Although I referred to the evidence of Dr P at paragraph 176 of my reasons that if the mother’s allegations about the father proved to be unfounded that the description of the child as “alienated’ would be fitting and that it might be reasonable to consider her conduct as indicative of a pattern of active parental alienation, evidence which Dr J agreed with, I did not find that the mother suffered “Parental Alienation Syndrome”  To the contrary, at paragraph 267 of my reasons, referring to the articles to which Ms Samson, who appeared on behalf of the mother, asked me to read, I made it clear that “my decision is based upon the evidence in this case and not the opinions of the authors of those articles or any label that might be applied to the circumstances of this or any other case.”  

5. The second, third and fourth grounds of the mother’s appeal are essentially matters which go to the weight that I gave to the evidence and not that I failed to consider these matters at all. This places a significant burden upon the mother, having regard to the role of the appellate court, with respect to the exercise of discretion in cases such as this one and is significant for the purposes of an assessment of the merits of her appeal.

6. The fifth ground, which is numbered as the sixth ground in the Notice of Appeal, is that the procedural orders I made restricted the mother’s ability to issue subpoenas to call a witness, thus denying her natural justice. I did initially indicate at a directions hearing that I thought that the evidence of psychologist Ms O, and in particular her report dated 24 February 2012, would not be of great assistance to me given that Ms O had only seen the child on two occasions and not since early 2012, that she had not seen the father at all, and in circumstances where an order had been made for the preparation of a Family Report. However, it was ultimately agreed by the father, the mother and the ICL that the report prepared by Ms O should be in evidence and that Ms O was not required for cross-examination.

7. Although it is not possible to say that the appeal has no prospect of success, I am of the view that these grounds are not likely in all of the circumstances of this case to result in a successful appeal. I agree with Ms Fisken’s submission that, at least in its present form, the mother’s appeal is relatively weak. Notwithstanding this assessment of the merits of the appeal, I do not doubt, as submitted by Ms Fisken, that the mother’s appeal is bona fide.

8. The parties were unable to say when the appeal might be heard, however I have received a copy of a memorandum from the Regional Appeals Registrar which indicates that the appeal could be accommodated in the March 2014 sittings of the Full Court, subject to the appellant’s capacity to file the appeal books.  After that the next sitting of the Full Court in Melbourne is scheduled for May 2014 but that may be moved to June 2014. I brought this information to the attention of the parties. 

Other Factors

1. It was submitted by Ms Fisken that the appeal may be rendered nugatory if a stay is not granted. She submitted that because of the different style of parenting of the parties in this case it might not be feasible to reinstate the previous arrangements for the child’s care, thereby rendering the appeal nugatory. I do not accept that there is anything that would set this case apart from other cases such as this one or that even if the child were to remain in the father’s care and, for that matter, to change schools, that would preclude her being returned to the mother’s care or her previous school if the mother’s appeal were to succeed.

1. In my view, the significant issue in this case is not whether the appeal would be rendered nugatory, but whether the grant of a stay would be in the child’s best interests, as well as the desirability of limiting the frequency of changes to the child’s living arrangements, as referred to in Trahn & Long (No 2).

2. In his Affidavit filed 21 October 2013 the father deposed that after meeting with the Family Consultant the child left the Court with him willingly and happily and enthusiastically greeted both his mother and his sister with a warm hug and hello. He says that he has shared a close bond with the child since the orders were made which has strengthened over the last three weeks.

3. Since school resumed on 8 October 2013 the father has been driving the child to and from her current school every school day, a trip which he says takes him approximately an hour each way subject to the traffic. Ms Fisken submitted that it was more like 45 minutes each way. Whichever is correct, and it is likely that the time will vary subject to traffic conditions, the child is spending between one and a half to two hours travelling each day. Whether it is one and a half hours or two hours, it would not be surprising, as deposed to by the father, that it would be tiring for the child.  

4. The father also deposed in some detail to the steps he has taken in consultation with the ICL, the Family Consultant, the principal and the classroom teacher at the child’s current school, the principal and staff at the school at which he has enrolled her, and the arrangements he has made for the child to commence at her new school on 28 October 2013. The child has visited her new classroom and taken a tour of the school. The father deposed that the child was asking questions and said how much she liked the school, the performing arts centre and the literacy room. The father further deposed that he, the child and Dr J discussed the proposed change of school at the counselling session on 19 October 2013 and that Dr J was supportive of the change.

5. The mother’s case is that I should stay my orders and return to the orders made by Senior Registrar FitzGibbon on 30 May 2012. Those orders provided for the child to live with the mother and spend time with the father on each alternate weekend and during school holidays. The difficulty with this proposal is that, as referred to in my reasons, the mother’s case was that the father was not of sound mind, was an incompetent and neglectful parent, was abusive and had abused the child, that the child is frightened of him and at risk in his care, and that the child should not be permitted to spend time with him.  Although at the conclusion of her case the mother proposed that the child spend time with the father, she had not during the hearing been able to identify any real benefit to the child of doing so and her evidence was that there was nothing that would change her mind about the father.

6. On the basis of the mother’s own evidence about both her failure to comply with previous court orders and her willingness to do so again in the event that she considered it necessary for the child’s welfare, I found that I had no confidence that she would facilitate a relationship between the child and her father or that, even if I were to make orders that she do so, that the mother would comply with those orders. I note that the grounds of appeal do not include a challenge to my findings in relation to these matters.

7. Given my findings about the mother’s evidence, any order I made staying the orders of 27 September 2013 and reinstating the orders of 30 May 2012 would have to be based upon what I consider to be the very real likelihood that the child will either not spend time with the father at all or that, even if she starts spending time with the father, that the mother would eventually find an opportunity to obstruct any arrangements made for the father to spend time with the child. I was satisfied then and am satisfied for the purposes of this application that that would not be in her best interests.

8. Although the father’s evidence has not been tested, the mother did not dispute that she sent the text messages to him annexed to his Affidavit filed 24 October 2013. Notwithstanding my findings, it is clear from those text messages that the mother holds the father responsible for what has happened and not one of those text messages suggests that the mother has developed any real insight into her own behaviour and how that has impacted upon the child’s welfare. Nor do they give me any confidence that she would be able to keep the feelings she expressed in those text messages from the child or would not place pressure upon the child to conform to her view of the father.  

9. Ms Fisken conceded that although the Court might understandably have significant reservations about the mother’s behaviour, I could take some comfort from the fact that, notwithstanding that I did not require her to do so, the mother has now made an appointment to attend counselling with Ms R and that the first appointment has been scheduled for 12 November 2013. It is true that I did not order the mother to attend counselling, however I did encourage her to do so. Whilst the fact that she has made an appointment to see Ms R is encouraging,  I was also told by the ICL at the hearing on 18 October 2013 that the mother had advised her, in accordance with the orders made 27 September 2013,  that she  had made an appointment to see Ms R and had forwarded copies of the professional reports prepared in this matter, as well as a copy of the orders and my reasons for judgment to Ms R in anticipation of that appointment, only to be advised that  the mother was not going to see Ms R and had made an appointment to see a Ms T instead. I have not been told whether the mother kept her appointment with Ms T. Even if the mother on this occasion does attend her appointment with Ms R, these are not issues that are likely to be resolved by one appointment with a counsellor. 

10. Ms Fisken submitted that if I were not prepared to grant a stay of the orders generally, that I should at least stay that part of the orders permitting the father to remove the child from her present school. Whilst that is superficially attractive, I accept the father’s submissions and those of the ICL in relation to the effect of the travelling to and from school upon the child. I have also considered the evidence of the feedback from Dr J following her first session with the child and, in particular, her observation that the child is “excited about the impending change of school and discussions took place about the possibility of obtaining her new school uniform early so she could show this to her current classmates” and “spoke of the impending change of school with excitement” and her views that, given the steps that have been put in place to facilitate the change of schools, “any change to same would be confusing to her and, overall, not in her best interests.” The ICL concluded that Dr J was not supportive of a stay in relation to a change of school.

11. Although the appeal may be heard in March 2014 it could be some time before judgment is delivered and, in those circumstances, the child would have to travel to and from school for many months to come. In my view this is likely to be a significant burden for an eight year old and not in her best interests. There is the added problem of the child now living a long way away from the other children at her current school in terms of any weekend activities and what arrangements could be made for extracurricular activities.

12. Dr J recommended at the trial that if I were to make orders that the child live with the father that she should continue at her current school. That the child appears to be positive about her new school and that Dr J does not support a stay of the orders with respect to her changing schools not only supports the father’s case that I should not grant a stay of the order permitting him to change the child’s school but, in my view, also lends some support to the father’s evidence that the child has been enjoying her time with he and his family and suggests that the transition to his care has been relatively smooth for the child.

13. The child has already experienced a significant change, albeit the evidence suggests that she may have coped reasonably well with that change on this occasion. However, if I were to accede to the mother’s application and grant a stay the child would experience the further upheaval of a return to her mother’s care and the potential of a further change in the event that the Full Court dismissed the mother’s appeal. Given my assessment and that of her own counsel as to the merits of the appeal, that is not an unlikely scenario. 

14. I am satisfied, given my findings about the strength of the mother’s feelings, the pressure she has placed upon the child, and her total lack of insight into the needs of the child, that to order a stay which would have the effect of returning the child to her mother’s care would be extremely disruptive for the child, and could be detrimental to her welfare both in the short and longer term.  

15. The text messages sent by the mother to the father highlight the intensity of her feelings and I am concerned that the mother lacks the necessary insight into her own behaviour to protect the child from her feelings about the father or that she would comply with the orders with respect to the child spending time with the father if I were to stay the orders and return the child to her care.

16. Considering and weighing up all of these matters I am of the view that I should not accede to the mother’s application for a stay. In reaching this decision I do not question the bona fides of the mother’s appeal and acknowledge that the appeal has some merit, albeit it is my view that it may be weak. I have also considered the fact that if the mother’s appeal succeeds it will necessitate a further significant change for the child who will by that time have been living with her father for many months.

17. However, when these matters are weighed up against all of the matters to which I must give consideration, I am satisfied on balance that I should dismiss the mother’s application for a stay.

I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 25 October 2013.

Associate: 

Date:  25 October 2013