MILLER & MILLER (No.2)
[2014] FCCA 846
•29 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MILLER & MILLER (No.2) | [2014] FCCA 846 |
| Catchwords: FAMILY LAW – Application for stay of interim parenting orders and further interim orders – application dismissed – application for leave to bring oral application for interim orders refused – Trial dates given – costs reserved. |
| Legislation: Family Law Act 1975, ss.60B, 61DA, 65DAA |
| The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited[1986] HCA 13 SCVG & KLD [2014] FamCAFC 42 |
| Applicant: | MS MILLER |
| Respondent: | MR MILLER |
| File Number: | BRC 12122 of 2007 |
| Judgment of: | Judge Purdon-Sully |
| Hearing date: | 12 March 2014 |
| Date of Last Submission: | 12 March 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 29 April 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Bunning |
| Solicitors for the Applicant: | Brown Lawyers |
| Counsel for the Respondent: | Mr T Kirk QC |
| Solicitors for the Respondent: | Keating Lehn Solicitors |
ORDERS
That the mother’s Application in a Case filed 4 March 2014 be dismissed.
That the question of costs of the Application in a Case filed 4 March 2014 be reserved to trial.
That this matter be certified as appropriate for Counsel.
Hearing date
That the matter be set down for final hearing for not more than two (2) days commencing at 10.00am on 28 and 29 October 2014 in the Federal Circuit Court of Australia at Brisbane.
Directions for hearing
That the Applicant pay any hearing fee or seek a waiver of the fee by no later than 4.00pm on 30 September 2014.
That each party file and serve on each other party by no later than 4.00pm on 30 September 2014:
(a)one affidavit setting out any further evidence in chief; and
(b)one affidavit of each witness intended to be relied upon at trial.
That each party file and serve on each other party by no later than 4.00pm on 14 October 2014 a Case Outline setting out:
(a)a precise minute of the final orders sought;
(b)a relevant chronology;
(c)a list of Affidavits and Applications and/or Responses (where appropriate) intended to be relied upon at trial; and
(d)a statement of evidence which they say supports the principles contained in section 60CC of the Family Law Act1975.
That no party shall be entitled to rely on any Affidavit material not filed and served in accordance with these directions without leave of the Court first had and obtained.
That in the event that either party wishes to cross examine the family report writer at the final hearing, that party shall provide written notice to the family report writer of such intention by no later than 4.00pm on 7 October 2014.
That in the event that no such notice is given to the report writer or the report writer is unavailable, the report will be admitted into evidence without cross examination.
Notice to Associate
That each party provide written notice to the Associate to Judge Purdon-Sully by no later than 4.00pm on 21 October 2014 advising:
(a)the name of Counsel (if any) briefed to appear at trial;
(b)details of compliance with the trial directions contained herein;
(c)the number of witnesses required for trial;
(d)the prospects of the matter settling; and
(e)any other relevant information affecting the trial.
That the parties be at liberty to apply within seven (7) days to be heard in relation to the trial directions.
IT IS NOTED that publication of this judgment under the pseudonym Miller & Miller (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 12122 of 2007
| MS MILLER |
Applicant
And
| MR MILLER |
Respondent
REASONS FOR JUDGMENT
Introduction
By Application in a Case filed on 4 March 2014 the mother, Ms Miller, seeks a stay of interim parenting orders made on 14 February 2014 (“the orders”) pending her appeal against the orders.
The orders concerned the parenting arrangements for the parties’ daughter, X (aged 7) born on (omitted) 2006 (“the child”).
The orders provided inter alia the following:
a)The parents equally share parental responsibility for the child (Order 1);
b)The child live with the parents in an equal time week about parenting structure with changeovers at school on Monday and if not at school then at 3.00pm on Monday (Order 3);
c)School holidays to be shared equally (Order 4);
d)Provision for special days with each parent (Order 5);
e)The parent with whom the child is living shall be responsible for delivering the child to the other parent’s home or school at the conclusion of the time the child is living/spending time with him or her (Order 6);
f)Phone time (Order 7);
g)Notifications (Orders 8 and 9);
h)The parties arrange for the child to attend upon Dr A with the mother to be able to object to that counsellor and provision for the selection of another counsellor (Order 11);
i)The parents attendance on helping professionals (Orders 12 to 16);
j)Restraints including the continuation of undertakings provided by the mother and her partner Mr B dated 6 December 2013 (Orders 17 to 19);
k)Overseas travel (Orders 20 and 21); and
l)Adjournment of the matter to 25 August 2014 (Order 22).
The mother filed a Notice of Appeal on 10 March 2014. The mother relied upon sixteen (16) grounds of appeal. There can be no issue that the appeal was filed on a timely basis.
The appeal is likely to be heard by the Full Court in its August/September 2014 sittings.
The mother, by her Application in a Case, also seeks further orders as follows:
a)That the father be restrained from discussing the proceedings with the child and with her teachers, counsellors and helping professionals;
b)That changeovers which do not take place at school occur at (omitted) McDonalds or the (omitted) Police Station[1]; and
c)That the child attend a counsellor recommended by the child’s GP.
[1] See [17] mother’s affidavit filed 4 March 2014
The father opposes the application for a stay. He submits the application is without merit. Further, Mr Kirk for the father submits that in relation to the matters the subject of the interim orders the Court is functus officio. It is his submission that where the mother seeks to vary the orders for changeovers as set out in Order 6 of the orders, that order was not only not the subject of issue before the Court on 10 February 2014 but it is now the subject of an appeal and I have no power to alter the order.
The stay application was listed for hearing in my duty week on 12 March 2014. At the commencement of the hearing Mr Bunning Counsel for the mother informed the Court that the mother would not be seeking a stay of Orders 11 and 14 of the orders. Those orders provided for the child to attend counselling and for the parties to provide to any helping professional a copy of Mr K’s report. The parties were able to agree that the child would attend upon Mr S for counselling. As a consequence of that agreement it is not necessary for me to consider the mother’s further application that the child attend upon a counsellor recommended by her GP.
At the hearing the mother also sought, by way of oral application, an order that the father sign a joint enrolment form required by the school where the child attends which the mother asserted the father had refused to sign. In relation to that application Mr Kirk submits that on his instructions the school does not require the parties to jointly sign the document, however if the school did so require then the father would sign the document.
I apologise to the parties for not being able to deliver this decision earlier as contemplated.
Brief history of litigation
Whilst the background to this matter is detailed at [9] – [33] of my published reasons of 14 February 2014, it is apposite to recount some history.
The father initiated proceedings on 27 September 2013 seeking orders on a final basis for week about time and in the interim the preparation of a family report.
It is unchallenged at the time that the child was residing primarily with her mother and spending substantial and significant time with the father from Thursday to Monday each alternate weekend and for half of the school holidays pursuant to consent orders entered into by the parties in 2007 (“the 2007 orders”).
The father raised concerns about the child’s behaviour and family violence. He subsequently filed a Form 4 Notice of Abuse and Family Violence.
It is unchallenged that there was an incident of family violence in the mother’s household on 2 April 2013 which involved the mother’s partner Mr B and the attendance of police at the home.
It is further unchallenged that Mr B is a former (occupation omitted) who has suffered from a post-traumatic stress disorder.
The mother filed her Response on 2 December 2013. She sought dismissal of the father’s application.
On 6 December 2013 I adjourned the proceedings to obtain a family report and a report from Mr B’s psychiatrist.
Mr B and the mother provided undertakings to the Court as follows:
“UPON THE UNDERTAKING PROVIDED BY THE MOTHER:
A. That on a without admission basis she will not leave X in the care of Mr B at any time up to the date of the adjourned hearing and for the avoidance of doubt leaving X in the home or elsewhere with Y, Z, and Mr B shall be considered leaving X in the care of Mr B.
AND UPON THE UNDERTAKING PROVIDED BY MR B:
A.That on a without admission basis he shall not drink any alcohol at anytime up to the date of the adjourned hearing.
B.That on a without admission basis he will be of good behaviour toward the Mother and not commit domestic violence towards her.
C.That on a without admission basis he will not expose X to domestic violence.
D.That on a without admission basis he will comply with all treatment recommendations of his treating general practitioner and psychiatrist.”
The undertakings continued until up until the adjourned hearing on 10 February 2014. By virtue of Order 19 of the orders mad that day the undertakings continued on an interim basis.
Mr K, a Social Worker, prepared a report filed on 7 February 2014. His report made a number of recommendations, including that the child’s time in her father’s care be increased to either equal time or relatively more time with the mother and relatively less time with the father with the father moving to equal time over the next 12 to 18 months (see [70] of report).
The mother relied upon a report from Mr B’s psychiatrist, Dr I, filed on 30 January 2014.
On the adjourned hearing date on 10 February 2014 the parties reached agreement on a number of orders. Unfortunately, the orders do not reflect that fact and accordingly will require amendment.
The issues requiring determination by the Court on 10 February 2014 were confined to six (6) matters as follows:
a)Whether the child’s parenting regime should continue in accordance with the 2007 orders or increase to equal time;
b)Whether the undertakings of the mother and Mr B should be discharged, modified or remain in place;
c)Whether there should be a restraint on what the child calls Mr B;
d)Whether the child should change her General Practitioner;
e)Whether the parties should engage in Family Dispute Resolution; and
f)Whether the mother should be able to care for the child if the father is unavailable to do so for more than four (4) hours.
On 14 February 2014 I sought brief further submissions from the parties’ lawyers who were then on the telephone. The lawyers acknowledged that the above six issues were the only issues requiring determination by the Court.
At that time I further sought the parties’ instructions to their engagement in a “step parenting program”. The mother who was with her lawyer Mr P agreed to that order being made. It was that agreement which formed the basis of Order 13 of the Orders from which she now appeals.
The evidence relied upon by the parties
The parties rely upon the documents detailed in their written submissions as amended at the commencement of hearing or during submissions.
The mother relies upon:
a)Application in a Case filed 4 March 2014;
b)Affidavit of the mother filed 4 March 2014; and
c)Affidavit of Mr P filed 11 March 2014.
The father relies upon:
a)Response filed 11 March 2014;
b)Affidavit of the father filed 11 March 2014;
c)Affidavit of Mr S filed 10 March 2014;
d)Affidavit of Dr A filed 10 March 2014; and
e)The Orders dated 6 December 2013.
The law with respect to stay applications
The principles, both in the general law and in respect of parenting proceedings with respect to a stay application are well settled.[2]
[2] The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited[1986] HCA 13; (1986) 160 CLR 220 at 230; Alexander v Cambridge Credit Corporation(1985) 2 NSWLR 685. Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd[1986] HCA 84; (1986) 161 CLR 681; Clemett and Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG(1998) 72 ALJR 1329; Trahn & Long (No 2) [2008] FamCAFC 194
Those principles can be summarized by reference to the Full Court decision in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 at [18] as follows:
·“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 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 a 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 the stay for a short period of time; and
·the best interests of the child the subject of the proceedings are a significant consideration.”
This is an appeal against a discretionary judgment. The limits on an appellate Court’s ability to interfere with respect to such a judgment are well known (House v The King [1936] HCA 40; (1936) 55 CLR 499). In short, it is not enough for an appellate Court to consider that had they been in the position of the primary judge they may have decided differently, it must appear that some error was made in exercising the discretion.
In parenting matters, the authorities stress the importance of “the rights of children.” Further, the importance of the consequences for a child of granting or refusing a stay is well recognised (Carling v Carling (1977) FLC 90-320 at 76,696; Clemett & Clemett (1981) FLC 91-013;[3] EJK & TSL(No.2) [2006] FamCA 806.[4]
[3] Where Nygh J (with whom Davey and Ross-Jones JJ agreed) said at 76,175 that “in determining whether a stay should be granted the welfare of the child is the paramount consideration”
[4] Where Coleman, May & Boland JJ said at [17] in reference to Clemett (supra) that “we accept that 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.”
This was re-inforced in JRN & KEN v IEG & BLJ (1998) 72 ALJR 1329 where Kirby J said at [1332]:
“In my opinion, some adaptation of the rules stated in 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.”
Applying the law to the circumstances of the case
Bona fides
Mr Kirk for the father submits that the mere fact of an appeal has no impact on whether a stay ought to be granted and in the case of an interlocutory judgment that is of great significance. He submits that the final parenting trial will most probably be set down for hearing before the appeal can be heard, however even if the appeal was to be heard first the Full Court will invariably reserve its judgment and one could reasonably expect a further three months for the delivery of reasons. It is on this basis that he questions the bona fides of the mother in lodging the appeal and the stay application. He further submits that none of the grounds of appeal are specific, being full of generalities and complaints.
Whilst I accept that the mother’s actions raise the issue of her bona fides:
a)in the context of having sought trial dates on 10 February 2014, those trial dates now being available and the timing of such dates; and
b)given the mother’s agreement on 10 February and 14 February 2014 to the making of certain orders which are now the subject of her appeal,
on balance I am unable to conclude that the mother lacks bona fides. It is part of our system of justice that litigants are entitled to appeal orders. The mother’s evidence is that equal time would not be in the child’s best interests and that there are communication difficulties between the parties which would not support such a structure. The mother is entitled to prosecute that view, including by way of appeal of an interim decision.
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
Whilst matters relevant to this factor will be canvassed in my consideration of other factors informing my discretion, including the child’s best interests, I am unable to conclude that refusing the mother’s stay application would be unfair to her when balanced against the fact that the father is entitled to the fruits or benefits of a decision made in the child’s best interests. Nor can it be said that refusing the stay would prejudice the mother’s ability to put her case or to seek that the orders made on an interim basis should be varied on a final basis.
Nor can it be suggested that pending trial the restraints with respect to the mother and Mr B present a significant impost on her and her partner. It is unchallenged that an incident of domestic violence which the Court and the father viewed as serious took place in the mother’s household. The evidence in relation to that incident will be tested at trial. However, as I observed in my published reasons, the protection of a child takes precedence over adult inconvenience, in this case any such inconvenience continuing only until trial.
Further, it is clear that the undertakings of 6 December 2013 continued only until 10 February 2014, the adjourned hearing date. Accordingly, I accept that a stay of the orders – and the mother is pursuing a stay of Order 19 of the Orders which continued the undertakings - would result in the undertakings no longer being in force. I accept Mr Kirk’s submissions in this regard.
In short, I am unable to conclude that in granting the stay the convenience factors weigh in favour of the mother.
Whether the refusal to grant the stay would render a successful appeal nugatory
This is a substantial factor to which the Court should have regard based on the authorities.
There is no risk that the stay sought by the mother would render a successful appeal nugatory. The time the child spends in her mother’s household can be increased or decreased at a final hearing. That hearing, should it proceed, would be in six (6) months’ time.
Some preliminary assessment of the strength of the proposed appeal - whether the appellant has an arguable case
Mr Kirk for the father submits that none of the grounds of appeal demonstrate reasonable prospects of success such that the Court, when considering all of the matters required in the exercise of its discretion, would conclude that the mother’s prospects of success are poor.
Mr Kirk referred the Court to the decision of Gronow v Gronow (1979) 144 CLR 513 and in particular the well known passage from Stephen J at [519] – [520] inter alia that an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessment of matters of weight.
Mr Bunning for the mother submits that the test is not whether the appeal has reasonable prospects of success, but whether there is merit in the grounds of appeal.
For the reasons advanced by Mr Kirk in oral and written submissions, I accept that overall the mother’s prospects on appeal are not strong. That said, I am unable to conclude that the appeal is unarguable.
The basis upon which I have formed this view requires some brief consideration of the grounds of appeal.
Ground 1
This ground would appear to have little merit. I do not accept that I placed insufficient weight on the recommendations of Mr K. I placed significant weight on his recommendations (see [50] to [51] and [108] of my published reasons).
Further, the equal parenting structure implemented pursuant to the orders accorded with his recommendation at [70] of his report.
Grounds 2, 3 & 12
The mother asserts that the Court made findings of fact and findings of credit and therefore erred in law, however there is no particularisation at [16] to [19] of Mr Bunning’s written submissions as to the findings made to enable the Court to make a preliminary assessment of the merits of these grounds of appeal.
The fact that there was an incident on 2 April 2013 was unchallenged. At [58], [63] to [68] and [123] to [135] of my published reasons I discussed the evidence, including what the three children who were in the household at the time had reported to Mr K, what the mother and her partner said and what the police documents revealed.
Ground 4
This ground appears to have little merit. It is unclear how a reference to the legal principles contained in Heath & Hemming (No.2) [2011] FamCA 749 was an error in law where at [45] of my published reasons I referred to that decision as providing an helpful overview of the legal principles involved in parenting matters since Goode & Goode [2006] FamCA 1346. Whilst factually a case involving a relocation matter which had been heard on a final basis, it is a decision of a superior Court Judge who at [63] to [86] considered the statutory framework for making parenting orders under the Family Law Act 1975 before the outlining at [87] et seq the Court’s approach to parenting matters based on the authorities including matters heard at an interim stage.
Ground 5
This ground appears to be without merit. It relates to a complaint that insufficient reasons were asserted to have been given for the matter not being listed for trial. The Court informed the parties that it did not have trial dates for a two day matter in 2014. It is unclear what further reasons could have been given in the circumstances. The Court either did or did not have dates.
Grounds 6 & 7
These grounds concern the evidence of Dr I and can be considered together. The evidence of Dr I was considered at some length in my published reasons (see in particular [59] to [62] and [70] to [74].) It was open to the Court to adopt a cautious approach at an interim stage when the evidence of Dr I could not be tested and where it was clear from his report that he did not have the benefit of a consideration of the filed material or the police documents, the latter documents being of some particular relevance to the April 2013 incident and what he records he was informed about that incident.
Whilst Mr Bunning for the mother submits that the Court made reference to Dr I “appearing” to rely upon information provided by Mr B and the mother, it is a reasonable inference to draw from his report given that:
a)Dr I confirmed that he had been provided with this Court’s Practice Note CM 7 which required an expert witness to include in or attach to his report the documents and other materials that the expert had been instructed to consider. Those documents did not include court material or the police material. Nor were they enclosed in the letter to him from the mother’s lawyer dated 11 December 2013. Nor were the documents referred to in the body of his report. His conclusion that he was “not aware that the patient perpetuated a violent incident on 2 December 2013 or on any other date” would further suggest that he did not have reference to the police material which recorded in part that the mother had sustained injuries during an incident of domestic violence at her home on 2 April 2013, that the mother had informed the police that the arguing between her and Mr B had “now increased over a period of time to be of a physical nature”; that the “frequency of the arguments also increases with the amount of alcohol” consumed by Mr B and she “was fearful for the safety of herself and that of her children.”
b)Dr I refers in his report to having interviewed the mother and what she had relayed to him about the domestic violence incident; and
c)It is a reasonable inference from his report that his reliance on updated matters referred to in the report were from Mr B eg “reports he is relatively stress intolerant now” and “ main stress faced by this patient now involves the subject Federal Circuit Court matter” and if from another source then the source would have been identified.
Grounds 8 & 11
I propose to consider these grounds together as they involve similar considerations.
Whether proper and sufficient weight was given to the then current parenting structure for the child will be a matter for the appellate Court to determine. It was, however, acknowledged and considered in some detail at [80] to [109] and [136] of the published reasons that the father’s proposal presented a change for the child. The likely impacts of that change for the child was also considered with reasons given for why the Court viewed it as being appropriate to make the change.
Ground 9
Whilst it is asserted that the Court incorrectly applied the principles of s.60B of the Act, it is difficult to ascertain from [23] of Mr Bunning’s written submissions the particulars of that to enable a response other than in the context of a differing view as to how the child’s best interests would be promoted.
Ground 10
The issue of attachment was considered at [78] and [85] of my reasons. Whilst it is open to the mother to advance the arguments detailed by Mr Bunning at [24] of his written submissions, what I did say was that the child’s primary attachment did not present as a significant factor in the circumstances of this case as perhaps in other cases. I then outlined the basis upon which I formed that view relying upon the history of the child’s care since separation.
Ground 13 & 14
These grounds can be considered together and amount to a challenge to the exercise of my discretion again based on what weight should properly have been given to the evidence of the mother with respect to the parties’ communication difficulties and insufficient reasons. Whilst I accept that the argument being advanced by Mr Bunning is a difficult argument to maintain and I repeat and rely upon the decision of Gronow (supra), it will be a matter for the Full Court to determine if the Court erred.
It is not the case however that I ignored the mother’s evidence. I addressed the parties communication in my discussion of the relevant considerations at [66], [83], [88], [92] to [95], [101] to [103], [106] to [107], [138] and [149] of the published reasons concluding that the parents had jointly parented the child over a long period of time notwithstanding the state of their communication.
Ground 15
Whilst it is correctly submitted by Mr Bunning for the mother that a litigant is entitled to know what orders the Court intends to make and be heard in relation to those orders, Orders 4 to 7 of the orders were not in issue on 10 February 2014. Nor did the evidence address those matters, other than tangentially. Nor did the submissions. It was the oral submission of Mr Bunning for the mother that there was no reason to alter the orders of 15 September 2007, the historical parenting orders the parties had entered into following their separation. The mother amended her position at the hearing on 10 February 2014 from the interim orders sought in her Response filed 20 January 2014. In short, it was her position that the 2007 Orders should continue. Those Orders provided for an equal sharing of school holidays, special occasion time, phone time and changeovers at a parent’s home. Orders 4 to 7 of the consent orders covered those matters and whilst in line with the interim orders sought by the father in his Second Further Amended Initiating Application filed 6 February 2014 which contained some variations to the 2007 Orders, the variations were not significant.
Similarly, overseas travel which appears at Orders 20 and 21 was not contentious, the father seeking orders in his application, the mother likewise seeking orders that she be able to travel abroad with the child and the unchallenged evidence being that the child had previously travelled overseas with the father.
Ground 16
It is difficult to address this ground without proper particulars.
For example, whilst the mother appeals the orders made with respect to the professional services dealt with at Orders 12, 13, 15 and 16 of the orders:
a)Orders 12 and 13 were based on the recommendations of Mr K and on instructions Mr Bunning informed the Court on 10 February 2014 that the mother and her partner would agree to the suggested professional interventions save for the Triple P course which the mother had attended. Further, having sought further submissions from the parties on 14 February 2014, Order 13 was made with the mother’s consent;
b)Mr Bunning further informed the Court on 10 February 2014 that the mother consented to the counsellors, including Dr I receiving a copy of Mr K’s report together with the documents subpoenaed by the police (see Order 15). Accordingly, this was an order that had been agreed to by the mother;
c)I did address at [107] and [155] to [157] of my reasons the basis for Order 16 of the orders; and
d)I further addressed the basis for a continuation of the restraints in Order 19, in particular at [74] to [77] of the published reasons.
The desirability of limiting the frequency of any change in a child’s living arrangements
In the context of the history and given my assessment of where I viewed the child’s best interests and where the child has experienced a number of changes in recent times, including behavioural problems at school in respect of which she will obtain some counselling, it cannot be suggested having now transitioned to equal time it would be in the child’s interests to transition back notwithstanding my ability to now offer the parties trial dates in October and notwithstanding what I accept is a return to an historically familiar post-separation care arrangement.
The practical effect of the increased time must also be viewed in the context of the school holidays between now and the trial which would see the child spend equal time with her parents under the current regime of time ( the arrangement the mother seeks to continue under the 2007 orders) and what, on Mr Kirk’s calculations, unchallenged at the hearing, would involve an extra 30 or so days with her father.
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
Whilst the period of time until the appeal can be heard is not significant, having concluded that it is in the child’s best interests to vary her parenting structure, I am not persuaded that I should delay the implementation of the orders for some six (6) months because the mother has filed an appeal and because the parents continue to evidence a problematic relationship.
As the authorities make clear, the mere filing of an appeal is not sufficient to ground a stay, the father is entitled to the benefit of the judgment even at an interim stage, the Court having concluded that his proposal serves the best interests of the child and having obtained the interim judgment he is entitled to presume it is correct.
The best interests of the child
This is a significant factor.
It is trite to say that I made the orders I did because I had formed the view, at an interim stage, the child’s best interests were served in having more time in the care of her father. To put the orders into perspective, the orders did not place the child in the care of a stranger. The orders afforded her an opportunity to spend an extra three (3) days a fortnight with her father, a parent with whom she enjoyed a close relationship, a parent with whom she had consistently lived for substantial periods of time since her parents separated when she was very young, a parent with whom she had spent block school holiday time which exceeded the four (4) days a fortnight she was having with her father during school terms, a parent with whom she had travelled overseas and a parent who I assessed had the capacity to care for her needs.
The Orders were supported by the independent expert, Mr K who assessed the child as wanting more expansive opportunities in the care of her father.
Mr K was the expert selected by the parents. He was the expert who they agreed would prepare a report and express a professional view on the issues they each raised and on the child’s parenting arrangements. That does not disentitle the mother from having a different view or mounting a challenge to his report. However, it similarly does not disentitle the Court from having regard to his independent expert evaluation including at an interim stage, notwithstanding the Court’s inability to make findings on disputed facts. If that were not the case then the Court would simply list a matter for trial on the first return date and order the preparation of a report before trial. In considering the evidence and in following the legislative pathway the contents of an expert’s report has a role to play, particularly at an interim stage precisely because the Court cannot test evidence.
The mother failed to identify in any sworn material the basis of her objection to the report, including the factual issues the report writer failed to address. Even at an interim truncated hearing stage, she should have done so rather than attempting to address that from the bar table in some general way and by reference to one paragraph without critically linking the complaint to a best interests analysis. The conclusion on best interests focussed on a range of factors, not whether Mr B had or had not been accurately reported to have made the comments he did to Mr K at para [57] of the report. Further, in that context, no order prohibiting the child from calling Mr B “Daddy Mr B” was ultimately made.
Whilst a continuation of the stability derived from a well-settled arrangement may be deemed to be in the best interests of a child at an interim stage, the Court is not limited to considering and continuing pre-hearing arrangements. Nor can it be said that the interests of a child would be promoted by an inflexible requirement or presumption to maintain the status quo prior to making of orders the subject of the stay application (see K v B [2006] FamCA 848 at [29] to [32]).
The decision of Goode (supra) at [68] –to [74] discussed the relevance of status quo arrangements following the 2006 amendments, particularly at an interim hearing stage and the approach the Court was required to take. Whilst acknowledging that it is the best interests of the child that is paramount, the Full Court said that if the presumption in s.61DA applies and in the circumstances of this case the parties asked the Court to make an order for equal shared parental responsibility, then the Court is obliged by s.65DAA to consider whether the child spending equal time would be in the best interests of the child and whether that is reasonably practicable and, if not, it is then required to go on and consider whether an order that the child spend substantial and significant time would be in the best interests of the child and whether that is reasonably practicable. Accordingly, s.61DA must be applied in any case, including at an interim proceeding stage (see also the recent decision of SCVG & KLD [2014] FamCAFC 42).
The Full Court noted in Goode (supra) at [72] a “legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.”
Whilst the parents may have a poor relationship with each other, the child enjoys a good relationship with each of them. This is not a case where I was able to assess that the impacts for the child changing a settled arrangement negated my doing so. Further, buoyed by the recommendations of Mr K there was no persuasive evidence as to how an extra three (3) days a fortnight with a father with whom the child has strong attachments was likely to make a material difference to her care by reason of the parent’s poor relationship.
Whilst the mother is entitled to her view, the father, an equal co-parent, is entitled to his view and ultimately, after following the mandated pathway I concluded that it was his proposal that was in the child’s best interests. Having so concluded at that time and having carefully considered the matters advanced on behalf of the mother by Mr Bunning, I am not persuaded that the best interests of the child would not be served by a stay of the orders that I have deemed to be in her best interests.
In reaching this conclusion I have disregarded the updated evidence of the father that since the implementation of the orders there have been positive developments for the child, including the school notifying the parties of improvements in the child’s behaviour including the child receiving an award at an assembly. Whilst acknowledging that the matter had been listed on short notice, Mr Bunning for the mother submitted that the mother had had no opportunity to respond.
Conclusion on the stay
Having considered the matters I am required to consider, I find that the mother has not discharged the onus to establish a proper basis for staying the orders. Nor does the possible hearing of an appeal in four to five months’ time warrant a stay of the orders.
I accordingly dismiss the mother’s application for a stay.
Variation of the orders
As to the variations and further orders sought by the mother:
a)With respect to Order 6 of the orders I do not accept the submission of Mr Kirk for the father that I am functus officio with respect to varying an order with respect to changeover venue from which the mother is now appealing. The mother’s evidence concerns events that post–date the orders that touch upon the best interests of a child. I am satisfied in my discretion that I am able to further consider the matter. The father does not deny that an incident occurred. However, I am not persuaded that the mother has made out a case to vary the changeover arrangements. The fact that two loving intelligent parents who have co-parented a child together for many years, but sadly are now involved in litigation, were unable to respond to an issue with respect to exchanging items at a changeover on one occasion in a way that avoided conflict does not entitle me to conclude that is likely to be a pattern into the future or that I should change an arrangement with which the child is familiar or expose a seven year old child to a changeover at a police station and thus not otherwise afford her an opportunity to transition between her parents in a normal way. A future repetition is likely to be avoided if the parent delivering the child remains in their car. The issue to do with the exchange of items is capable of resolution by email, a method of communication utilised by the parties in the past. I accordingly do not propose to vary the orders. The parents will also have available to them the professional assistance afforded under the orders.
b)Nor is there persuasive evidence to enable the Court to conclude that the father should be prohibited from discussing the Court proceedings with the child, the child’s school teachers, counsellors and helping professionals. The child is attending a counsellor, as are her parents and it may be that some discussion of the proceedings will be necessary and appropriate with the child and/or her counsellor and/or helping professionals. The same applies with the child’s teachers given the issues that have been identified with respect to the child’s schooling. For example, the school sought information about any new Court orders in their email to the parents dated 20 February 2014 (Annexure “M21” to Affidavit of the mother filed 4 March 2014). If the order sought by the mother was made, namely restraining the father discussing the Court proceedings with the child’s school teachers, then the father would potentially be unable to respond to that and similar appropriate queries.). Litigation can provide a fertile ground for misunderstandings. The orders afford the parties an opportunity to clarify and resolve issues that may arise through periodic family dispute resolution.
With respect to the oral application made by Mr Bunning, I do not propose to grant the mother the leave sought by her. The mother adduces a paucity of evidence on the joint signing of a school enrolment form (see [11] of her Affidavit filed on 4 March 2014), nor any urgency with respect to the issue. Mr Bunning contends that is a matter to do with an exercise of the parties’ equal shared parental responsibility. The father’s position however is that if he is required to sign the enrolment form he will, however he had been informed he did not have to do so. His position is now on the Court record.
Trial
I propose to list this matter for trial on 28 and 29 October 2014, being the dates offered to the parties on 12 March 2014. I am not persuaded that I should not do so because the mother intends to continue with her appeal. It is in the best interests of the child that there be a determination. The mother sought trial dates on 10 February 2014.
Orders
I make the orders that appear at the commencement of these reasons.
I make my standard trial directions. The parties have liberty to apply to be heard on those directions within seven days of today’s date.
I reserve the question of the costs of the stay application to trial. I certify for Counsel.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Purdon-Sully
Associate:
Date: 29 April 2014
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Family Law
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