Meadows and Meadows (No 5)

[2019] FamCA 848

FAMILY COURT OF AUSTRALIA

MEADOWS & MEADOWS (NO. 5) [2019] FamCA 848

FAMILY LAW – PRACTICE AND PROCEDURE – Stay application – Application dismissed.

Family Law Act 1975(Cth)
Family Law Rules 2004

Rice & Asplund (1979) FLC 90-725
Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

APPLICANT: Ms Meadows

RESPONDENT: Mr Meadows

FILE NUMBER: PAC 3509 of 2013

DATE DELIVERED: 24 October 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 24 October 2019

REPRESENTATION

THE APPLICANT: Self-represented

THE RESPONDENT: Self-represented

INDEPENDENT CHILDREN’S LAWYER

Mr P Wilkin

Phillip A Wilkins & Associates

Orders

1. That the Application for a stay of Order 19 of the Orders made 30 July 2019 be granted pending determination of the appeal.

2. That the Applications for a stay of Orders 2, 5, 6, 8 and 9 of the Orders made 30 July 2019 be dismissed.

3. That all other Applications be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Meadows & Meadows has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: PAC 3509 of 2013

MS MEADOWS

Applicant

And

MR MEADOWS

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

1. On 30 July 2019 for Reasons published at that time, the Court made various parenting and property Orders and also dismissed an Application for spouse maintenance pursued by the wife at a hearing conducted before me in Sydney on 14, 15, 16 and 17 January 2019.  Subsequent to those Orders being made, an Application to vary the parenting Orders was made and after the matter had been dealt with initially by Loughnan J in Sydney, during that hearing, as his Reasons made clear, some matters were listed before me for determination, as, in his Honour’s view, the matters were matters which went to the machinery provisions for which liberty to apply at Order 29 had been given.

2. On 19 September 2019, I dealt with the remaining Applications then before the Court and slightly varied the Orders made on 30 July 2019 at Order 4.  Subsequent to that decision having been made, but in circumstances where the Court had been informed by the mother that she proposed to file an appeal against some of the Orders made by the Court, the mother did file an Application on 30 September 2019 seeking a stay of the parenting Orders numbered 2, 5, 6 and 9 pending appeal; a stay of the property Order number 19 pending appeal; and sought an order for spouse maintenance at a rate of $500 per week and, by proposed orders 7 to 16, sought further variations to the substantive parenting orders.

3. That Application in a Case was further, in a sense, expanded upon by an Application in a Case filed 4 October 2019 in relation, again, to some parenting orders.  The father on 17 October 2019 filed an Application in a Case in which the first three orders sought related, again, to parenting orders and at paragraph 4, he sought the removal of a caveat and at paragraph 5 and an order that the mother be restrained from lodging further caveats.  As Loughnan J sought, it seems from his Reasons, to do; as I attempted to explain to the unrepresented mother and father on 19 September 2019 and as I further attempted, as the transcript would reflect, to explain to the mother and father today, it is my view that I am functus ex officio in relation to the final parenting Orders made by me on 30 July 2019 and amended on 19 September 2019 for the Reasons already delivered.

4. That means that my jurisdiction to entertain further changes to parenting Orders made 30 July 2019 has ended.  That is not to say that a properly filed Application for amendments to the Orders I have made and which are currently the operative Orders could not be brought.  However, any such application to amend those Orders would need to satisfy the requirements of the Family Law Act 1975 in relation to section 60I and, ultimately, may require a determination by the Court as to whether, from the time the Orders were made, there has been a material and substantial change of circumstances, so as to enliven the jurisdiction in accordance with the principles enunciated in cases like Rice & Asplund (1979) FLC 90-725. I can well understand that these parents, who have been engaged in litigation for a long time and who, it would seem from their Applications in a Case, are not happy with the Orders I made on 30 July 2019 in respect of their daughter, B, want to keep agitating their positions.

5. However, until the Appeal Court deals with the pending appeal by the mother, which is proceeding through its normal stage, as I understand, a new judicial officer may be reluctant to engage in any further assessment of what orders are in the best interests of B even if it can be established that a material and substantial change of circumstances has occurred.  I explained to both the mother and father today that there is an opportunity, if leave is given in accordance with the principles to be applied, for the Appeal Court to take further evidence into account in its consideration of the Appeal launched by the mother.

6. Mr Meadows indicated he has not cross-appealed and Mr Wilkins, the Independent Children’s Lawyer, who appeared briefly this morning and made some brief submissions, has not, it seems, lodged an appeal as well.  Therefore, the mother’s Appeal will no doubt proceed in a timely way through the Sydney registry.  It is for these reasons that I do not have jurisdiction to entertain the relief sought in the Application in a Case filed by the parties seeking substantive changes to the parenting Orders.  For completeness, it was certainly the mother’s view that the filing of a Notice of Risk, as she has recently filed, of itself would require the Court to consider her new parenting Application.  I do not agree, but that is a matter for another judge on another day if a proper application filed in accordance with the Family Law Rules 2004 is filed through the gateway required by section 60I.

7. It follows, then, that today, the only Application that I can deal with is the mother’s Application for a stay of four parenting Orders and her application for a stay of one of the property Orders.  I propose to deal with them sequentially.  The principles relating to a stay application are well settled and were summarised in the Full Court decision of Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 at paragraph 18 where, after referring to a number of authorities, both under the Family Law Act 1975 and otherwise, the Court said:

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

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

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

   ·the mere filing of an appeal is insufficient to grant a stay.

   ·the bona fide 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 convening 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 a stay; 

   ·some preliminary assessment of the strength of the proposed appeal – whether the applicant has an arguable case; 

   ·the desirability of limiting the frequency of any change in the 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 the stay for a short period of time; and

   ·the best interest of the child, the subject of the proceedings, are a significant consideration.”

Application to stay Order 19 – the property order

1. Order 19, made 30 July 2019, provided as follows:

   “The husband shall pay the wife the sum of $200,000 (“the settlement sum”) within sixty (60) days of the date of this Order.  The husband shall retain as his exclusive property, free of claims by the wife, the former matrimonial home at O Street, Suburb P (“the home”), with the husband indemnifying the wife from all claims, demands of actions arising from the home, including the Bank PP mortgage.”

2. The wife’s concern if a stay is not granted is that if the husband pays her the sum of $200,000 as ordered, he will be uninhibited in being able to sell or further encumber the former matrimonial home, such that if she is successful in her Appeal in which she at trial sought a payment greater than $200,000 and/or a sale of the property, it would be rendered nugatory.  The husband, in reply, says that he is in a position to pay the $200,000 to the wife subject to her releasing a caveat, which has been filed over the title (the property being in the legal ownership of the husband alone at this time), and that such refinancing to the extent of $466,000 is available to him now.  The sum of $466,000 appears to be a combination of payment to the wife of $200,000, the approximate current mortgage of $241,000 and a debt owed by the husband to his solicitor of $25,000, totalling $466,000.

3. It is, in the circumstances of this case, as have been alluded to by both Loughnan J and myself earlier, somewhat unusual that the wife may not wish to obtain the $200,000 the Court has ordered the husband pay to her.  However, she justifies her position, even though she says to the Court her current financial position is desperate, by her concern that the husband may take some steps between now and when the appeal is determined which could reduce her capacity to obtain her rightful share of the property pool.  In that regard, the grounds of appeal identify a number of areas where she says that I erred as the trial judge and I do not suggest for one moment that she may not wish to argue those points before the Appeal Court.  I make no comment about whether her appeal has any chance of success.  That is not a matter for me.  It is a matter for the Appeal Court.

4. In these circumstances, I turn my mind to whether and to what extent the husband might be prejudiced if the stay was granted.  In that regard, the husband indicated that he can refinance to the extent that he has sought (namely $466,000) at a lower rate of interest than he is currently paying on the interest-only mortgage of $241,000.  A delay, therefore, does possibly have an effect on him.  However, against that will be the fact that he was not required to pay the $200,000 by reason of the wife’s application for the stay.  He is not paying interest and/or instalments on an additional loan of $200,000, even if it is at a lower rate of interest.  I accept that his lawyers – noting he was unrepresented at the hearing before me – have, probably, been waiting for payment of their account for some time.  However, that is not on balance a material consideration in my view.  The husband says that he is being inhibited from moving on by his inability to manage the property as he wishes.  I take all these matters into consideration.  However, on balance I take the view that the stay sought by the wife in relation to Order 19 of the Orders made by the Court on 30 July 2019 should be granted.  I will so order.

Stay application – parenting-orders

1. The history of this very difficult and sad matter is set out fully in the Reasons for Judgment already delivered by the Court.  I do not repeat that history save to say that the primary issue at the trial was where the child should live.  On an interim basis, as the history revealed, the child had been living with the father since 2017.  The mother sought a change of residence.  The Orders made by the Court did not change residence.  A further very significant issue, however, was as a result of Orders made in November 2017 the child was to spend time with the mother, supervised at a contact centre at V Town.  The Orders made at that stage were done so in the context set out again in my Reasons.

2. I have already made the observation that it may not have been anticipated that the Orders would have had the longevity that they ended up having.  Nonetheless, the undisputed evidence is that, once the order for supervised time was made, the mother felt unable for a number of reasons to exercise time in a supervised facility.  I do not repeat what I have already said about that issue.  The Orders made by the Court on 30 July 2019 provided for B to begin spending unsupervised time with the mother.  That was the effect of Order 4.  Even in its amended form on 19 September 2019, the mother does not seek a stay of that Order.  She does, however, of course in her appeal assert that the child should live with her.  That is a matter that she will no doubt pursue.

3. The mother seeks to stay the operation of Order 2.  Order 2 effectively provided that the father was to have sole parental responsibility for the child and had a number of provisions as to how the father should consult with the mother before he made a decision.  The effect of a stay by the mother would be that these parents, who have no capacity to communicate at any reasonable level, would need to find a way to communicate so as to give any effect to a presumption of equal shared parental responsibility.  I say that, because it is not clear to me from the history of the matter that any order for parental responsibility was made on either an interim basis, until my Order made on 30 July 2019.  The mother says she needs a stay of the Order because, it seems – that if it was stayed – she is then able to assert a right through the presumption of equal shared parental responsibility to either be involved in decision-making and/or to obtain information as a parent.

4. I note that the final Orders made 30 July 2019 make provision for the father to authorise certain persons to provide information to the mother.  That is not sufficient from the mother’s perspective and again is a matter that she is entitled to pursue on appeal.  However, the reasons why the Court took the view that it was in the best interests of B, that a parent have sole parental responsibility and, as the Court ordered, that the father should have that sole parental responsibility, are in my view still relevant to her best interests now and persuade me on balance that there is no basis upon which the Court ought order a stay of Order 2.  Accordingly the mother’s application for a stay of Order 2 is dismissed.

5. The mother seeks a stay of Orders 5 and 6 of the Orders made 30 July 2019.  To some degree Orders 5 and 6 have been dealt with by the amendment on 19 September 2019.  The effects of those Orders were that after the initial period of six months, where changeovers were to occur at the Suburb MM Children’s Contact Centre – that changeovers thereafter, which included every second Saturday, from 10.00am to 6.00pm, unsupervised, would occur at the service station at UU Town.  The mother says as a result of a change of her circumstances she is unable to afford and/or attend at the Suburb MM Children’s Contact Centre.  Her application to vary the orders, which I have already indicated I cannot deal with, suggest other places of changeover.

6. The father opposes the stay in relation to the Orders made to facilitate a changeover.  In some ways the Orders made by me on 19 September 2019 deal with some of the concerns the mother raises in relation to the Suburb MM Children’s Contact Centre, its location, but only from the time when the time the mother spends with the child increases to every second Saturday, from 10.00am to 6.00pm.  The mother’s position is that, if the stay was granted, then the operative order for changeovers would return at least initially to the Order of 14 November 2017, where changeovers, because of the supervised time, were to occur at the V Town Contact Centre (see Orders 3, 4 and 5.)  I see no material difference between the Order made 14 November 2017 and the Order I made on 30 July 2019.  For the reasons which I have already indicated, being unable to consider other alternatives to changeover locations without a proper application having been brought and considered, I am not prepared to grant a stay of parenting Orders 5 and 6.

7. The mother seeks a stay of Order 9, made 30 July 2019.  She does not appear to seek a stay of Order 8.  Order 8 provided that the child should communicate with the mother by telephone as agreed between the parents but failing agreement on at least between the hours of 6.30pm and 7.30pm, each Wednesday, and each non-contact Saturday.  The Order was made in the anticipation that the mother would exercise her time with the child under the Orders.  It seems that if she is not spending time on Saturday because, she says, she cannot attend at the changeover place identified, she would be entitled to a telephone call on a Wednesday, as the contact did not occur on the Saturday.  Be that as it may – and it may have been an oversight on the mother’s behalf – her real concern is that the Order made on 30 July 2019 reduced the frequency of time that she was to spend on the telephone with her daughter.  The telephone contact Order made 14 November 2017 which would operate, if the Order made 30 July 2019 was stayed, is Order 8 as follows.

   “Order 6 made 10 January 2017 is to continue with the following further Order.  The mother’s telephone conversations with B as provided for in Order 6 of the Order of 10 January 2017 are to be supervised by the father or his nominee and are not to be lengthy.  The father may terminate the call at the conclusion of 15 minutes of time or at any time he concludes the mother’s conversation with B has become inappropriate.”

8. It can be seen therefore, that the Order made at Order 9 on 30 July 2019 incorporates the interim Order made effectively on 14 July 2017.  When this was explained to the mother, she identified that, although she is very unhappy with any of her calls being monitored by the father and believes that is contrary to law and proposes to so argue before the Full Court – it seems her real concern was that the frequency of time has reduced.  In that respect, Order 6 made 10 January 2017 on an interim basis pending further order by Judge Kemp in the Federal Circuit Court of Australia was in these terms:

   “The mother have telephone time with the child as agreed between the parties, but failing agreement on at least three occasions per week where the child is otherwise living with the father between the hours of 6.30 pm and 7.30 pm on Monday, Wednesday and Friday.”

9. It follows from this analysis, that and I believe the mother’s concern apart from the monitoring, which has now been in place since November 2017 at least, is that the frequency of time has reduced.  That seems to be the reason why she seeks the stay.  The father opposes the stay being granted.  By inference he believes the current reduced amount of time on the telephone is in the child’s best interest.  That of course was the position adopted by this Court for the Reasons given in its Orders.  In my view, it is not appropriate to stay Orders 8 or 9 – noting that the mother did not effectively seek a stay of Order 8.  Accordingly the mother’s application for stay in respect of Orders 8 and 9 is dismissed.

1. For completeness, the mother’s Application, as I say, also sought orders for spouse maintenance.  The Orders of 30 July 2019 dealt with the application for spouse maintenance before the Court and dismissed that application.  It is not appropriate in an Application in a Case in respect of a completed matter, to seek to rely upon change of circumstances to agitate for review of that application – review of spouse maintenance.  In any event, I note that the mother on her appeal disputes the correctness of decision in respect of spouse maintenance.  Again I make the point that it may be open to the Full Court, to take in further evidence about what, the mother says, is her changed financial position since the hearing of this matter in January 2019.

2. For the Reasons which I give, I grant a stay of Order 19 made 30 July 2019, pending determination of the Appeal.  I dismiss the applications for stay of the parenting Orders 2, 5, 6, 8 and 9.  I dismiss all other applications.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann J delivered on 24 October 2019.

Associate: 

Date: 19 November 2019