McGowan & Hahn (No 2)
[2024] FedCFamC1F 528
•1 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
McGowan & Hahn (No 2) [2024] FedCFamC1F 528
File number: PAC 2445 of 2018 Judgment of: CHRISTIE J Date of judgment: 1 August 2024 Catchwords: FAMILY LAW – APPLICATION FOR STAY – EX TEMPORE – Where appeal has been filed – Where father has sole parental responsibility – Where there is no basis upon which to order a stay – Where there is a significant delay in filing an appeal and application for stay – Where final orders provided for a moratorium of time based on the single expert’s evidence to assist in transitioning to another household – Where delay in bringing the application is material – Where it would be adverse to the child’s interests to order a stay – Where granting stay would interrupt the child’s period of stability – Where applicant did not discharge the onus to grant a stay – Application dismissed. Legislation: Australian Passports Act 2005 (Cth) s 7 and s 11
Family Law Act 1975 (Cth) ss 62, 65DA, 65Y, 68B
Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
House v The King (1936) 55 CLR 499
Trahn & Long (No.2) [2008] FamCAFC 194
Division: Division 1 First Instance Number of paragraphs: 34 Date of hearing: 1 August 2024 Place: Sydney Counsel for the Applicant: Ms Breeze Solicitor for the Applicant: Somerville Legal Counsel for the Respondent: Mr Finch Independent Children's Lawyer: Ms Karagiannis ORDERS
PAC 2445 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HAHN
Applicant
AND: MR McGOWAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
1 AUGUST 2024
THE COURT ORDERS THAT:
1.The application filed 29 July 2024 is dismissed.
2.Costs are reserved.
3.The respondent’s solicitors have liberty to re-list the application for costs filed on 22 July 2024 by arrangement with chambers after determination of the appeal.
4.The listing on 4 September 2024 is vacated.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym McGowan & Hahn has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
CHRISTIE J:
This is an application for a stay pending appeal.
The proceedings relate to a child, X born 2017.
On 24 June 2024 I made final orders as follows:
1.The father have sole parental responsibility for [X] born […] 2017 (“[X]”).
2.[X] live with the father.
3. [X] spend time with the mother as agreed and failing agreement as follows:
a.At the expiration of 2 months from the date of these orders, supervised at least until [X] turns 12 (and thereafter at the election of the father), on one occasion each fortnight, for up to three hours, supervised by an agency engaged by the father (“the agency”) on dates and times provided to the parties by the agency with the costs to be shared between the parties equally;
b.On the Sunday of Mother’s Day each year at times which are nominated by the agency;
c.At such other times as the father agrees in writing.
4.Pursuant to s 68B of the Family Law Act 1975 the mother not contact [X] or approach [X], [X’s] school, [X’s] residence except with the consent in writing of the father.
5.Pursuant to s 68B of the Family Law Act 1975 each party is restrained from:-
a.Making any negative, critical, belittling or derogatory comments in relation to any other party or members of any other party’s family or household (including questioning or criticising the parenting decisions and/or parenting capacity of the other parent) to or in the presence or hearing range of [X].
b.Doing or saying anything to and/or within the presence or hearing range of [X] that could make her feel fearful of the other parent or to feel unsafe in the company or care of the other parent and each party will each use their best endeavours to ensure that no other person does so.
6.Within 21 days of the date of these orders, the father is to engage [X] with a child psychologist.
7.The father is to facilitate [X’s] attendance on the child psychologist in accordance with the child psychologist’s recommendations.
8.For the purpose of Order 6, the father is permitted to provide to the child psychologist a copy of the following:
a.The Reports of [Dr Q] dated 15 December 2020 and 15 December 2023;
b.These Final Orders made; and
c.A copy of the reasons for judgment delivered in these proceedings.
9.The mother shall notify the father of an email address for communication within 7 days.
10.In the event of a medical emergency, the father is to notify the mother of what has occurred and [X’s] prognosis and treatment as soon as practicable and within 24 hours of such emergency occurring by email to the address provided in order 9.
11.The father is to provide the mother with [X’s] school reports within 7 days of receipt of same by email to the address provided in order 9.
12.The father is to provide the mother with any medical report he receives in respect of medical treatment provided for [X] by a specialist medical practitioner by email to the address provided in order 9.
13.Pursuant to s 65Y of the Family Law Act 1975, the father is authorised to remove [X] (female) born […] 2017 from the Commonwealth of Australia and only to countries which are a signatory to the Hague Convention, at such times as are nominated by the father.
14.The father is required to provide the mother not less than 45 days written notice of his intention to travel with [X], including a written itinerary of travel sufficient to identify the place or places that will be visited and a copy of return travel documents.
15.Pursuant to s 7 and s 11 of the Australian Passports Act 2005 the father is authorised and permitted to apply for and receive an Australian passport for [X] born […] 2017 notwithstanding the consent of the mother has not been obtained.
16.Pursuant to s 11(1)(b) of the Australian Passports Act 2005 IT IS REQUESTED that the Australian Passport Office of the Department of Foreign Affairs and Trade do all acts and things to issue an Australian Passport in the name of [X] born […] 2017.
17.Within 30 days the mother pay to the father the sum of $4,400.
18.Within 30 days the mother to pay the ICL costs in the sum of $9,625.
19.Within 30 days the father to pay the ICL costs in the sum of $9,625.
20.Pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.
On the day I delivered reasons and made orders, a solicitor who appeared on behalf of the applicant mother sought a stay of the final orders.
Absent an appeal there was no basis upon which to order a stay so I declined to hear an oral application.
On 22 July 2024 the applicant filed an Appeal seeking to discharge the orders made 24 June 2024.
On 29 July 2024 the applicant filed an Application in a Proceeding seeking a stay.
The orders the mother sought were:
1.That the Orders made on 24 June 2024 be stayed.
2.That X born […] 2017 be returned to the Mother pending determination of the appeal.
3.That the Mother have sole parental responsibility for [X].
4.That [X] live with the Mother.
5.That [X] be re-enrolled at [PP School] in [Town QQ].
6.That the Court determine [X’s] time arrangements with the Father.
7.That [X’s] name be hyphenated to [Hahn-McGowan].
The mother appeared via counsel when the matter was before the Court on 1 August 2024. Counsel indicated orally that mother did not seek Order 7.
The father and the Independent Children’s Lawyer opposed the granting of the stay.
THE LAW
The principles which apply to consideration of an application for a stay of parenting orders are well-settled.
They are as outlined in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 at [18] and in Trahn & Long (No.2) [2008] FamCAFC 194 where the Full Court, having reviewed the jurisprudence, set out the following relevant principles at [38]:
•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.
CONSIDERATION
On 24 June 2024 X came into the care of her father. The evidence suggests she has remained in his care in a household comprised of the father, his partner and their daughter HH.
X would have been due to commence a new school this week or last week. The evidence does not establish whether that is the case.
The mother’s counsel submits and I accept that at the time of hearing X was well settled at school and performing well. X had a close relationship with the mother and extended maternal family. It was submitted that there is relevance to be attached to the fact that X was unable to farewell her family and her friends.
The fact that the decision was implemented without the opportunity to have farewells while unfortunate was intentional and designed to assist X’s transition. It is not a basis on which to order a stay.
The final Orders did not provide for time with extended family, but as has been observed, there was no application before the court for orders. This is neither a matter touching on the merits of an appeal or a basis upon which to order a stay – although I accept it is a change in circumstances for X. No appeal was filed until the last day on which such an appeal could be filed (22 July 2024) and no application for stay was filed for a further week, being filed 29 July 2024. That application has been listed expeditiously. There is no explanation in the appellant’s affidavit material to explain why no action was taken expeditiously and yet the material now urges urgency upon the court.
The delay itself is significant. It is significant because of this structure of the final orders, as has been observed in submissions on behalf of the Independent Children’s Lawyer. The orders provided for a moratorium of time grounded in the evidence of the single expert designed to assist transition from one household to the other. In those circumstances, delay in bringing an application for a stay is highly material because X has been in the other household now for approximately five weeks; it may well be now approaching six.
The rationale for the principles outlined above is the need to have regard to the specific circumstances of a child at the time an application is made. If I ordered a stay, I would change X’s living arrangements. The authorities urge against back-and-forth arrangements, except where the best interests of the child dictate.
In that regard I note the following matters for X:
(a)She has a good relationship with her father;
(b)She is likely to have experienced distress on being informed that she was to move to live with her father;
(c)The move between the two households has required a change of school;
(d)The bulk of X’s time between the making of the orders and the hearing of this application has been school holidays.
The mother did not specify what time orders or even whether such orders would be supervised in her application for a stay.
This failure is relevant because it is necessary for me to understand what the mother thinks is in X’s best interests if I am to, in the circumstances of having conducted a final hearing, be asked to make further orders.
I now need to have regard to the merits of the proposed appeal – at least in a cursory fashion.
The appeal grounds contend failure to take into account relevant matters and facts. They also contend findings contrary to the evidence. One ground also advances inadequacy of reasons and a final complaint argues that the decision was unreasonably or plainly unjust.
Examples were given in submissions of failure to give consideration or adequate consideration. A further example of a failure to take into account a relevant consideration was said to be the failure to take into account problems associated with long-term supervision arising out of the expert evidence.
It is fair to say that the reasons for judgment and the expert evidence acknowledged problems with long-term supervision. But the corollary of problems with long-term supervision is not necessarily no supervision. In due course, an appeal court will consider the manner and characterisation of the issues at hearing and whether or not sufficient weight was given to particular evidence. The appeal is likely to face the hurdles faced by appeals against discretionary determinations since many of the appeal grounds are drafted in that manner. The High Court in House v The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ said at 504-5:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
I accept the bona fides of the appellant.
I cannot conclude that the appeal would be rendered nugatory if I fail to grant the stay because should the appellant be successful in discharging the final orders X would return to her care. This was appropriately conceded.
I must consider when the appeal might be heard. On 24 July 2024 the appellant filed an application for expedition of the appeal. If expedited it will be heard in September, if not, in October. In any event, there is no significant delay.
The authorities make plain that I am to have regard to X’s best interests. I accept that the orders implemented a significant change in X’s living arrangements but that significant change was implemented now some time ago. Whilst I accept that it would have been a difficult experience for her given the closeness between X, her mother and the maternal family, I cannot conclude that the solution to that is to, in effect, return her to the situation which I found was not in her best interests. In addition, although of less moment, X will have also experienced a new school although her time with the father has in large part occurred in school holidays.
To grant a stay would require X to change households in circumstances where her position was such that I concluded that she should move to live with her father in her best interests.
Further, X has had time in her new living arrangements. The period where time between X and the mother was suspended to aid the transition is more than half-way exhausted.
If I were to grant a stay and the appeal was dismissed, then X would be returned again to her father’s household, but the period of stability would have been interrupted.
It follows that I conclude that the applicant has not discharged the onus and the application will be dismissed.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 6 August 2024
0
3
2