MILTON and MILTON (STAY APPLICATION)

[2020] FCWA 176

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: MILTON and MILTON (STAY APPLICATION) [2020] FCWA 176

CORAM: SUTHERLAND CJ

HEARD: 2 OCTOBER 2020

DELIVERED : 5 OCTOBER 2020

FILE NO/S: PTW 87 of 2016

BETWEEN: MR MILTON

Applicant

AND

MS MILTON

Respondent

Catchwords:

PRACTICE & PROCEDURE - Stay pending appeal - Where final parenting orders were made for children to move to live with the father and have no contact with the mother for a period of 90 days - Consideration of relevant principles - Stay application dismissed

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mrs Farmer
Respondent	:	Mr Hooper SC
Independent Children's Lawyer	:	Mrs Needham

Solicitors:

Applicant	:	Perth Family Lawyers
Respondent	:	Anthony R Clarke & Associates
Independent Children's Lawyer	:	RM Law

Case(s) referred to in decision(s):

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

B v B (Re Jurisdiction) (2003) FLC 93-136

Federal Commissioner of Taxation v Myer Emporium Ltd (1986) 160 CLR 220

K & B (2006) FLC 93-288

Kwon and Lee (2006) FLC 93-287

Milton and Milton [2020] FCWA 152

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Milton and Milton has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Introduction

1In June 2020, the nine day trial was heard before me in relation to parenting issues concerning the parties’ two children. I published my reasons for decision from chambers on 2 September 2020 (“September 2020 Reasons”).[1] These reasons assume that the reader has also read my September 2020 Reasons.

[1] Milton and Milton [2020] FCWA 152.

2On 9 September 2020, I made orders (“the September 2020 Orders”) including:

a)Firstly, final orders that the children live with the father and for him to have sole parental responsibility for them.

b)Secondly, orders to facilitate the children’s transition from the mother’s care to the father’s care through the [Program A] (“the Program”). In particular, as part of the Program, the orders provided for the father and the children to take part in an intensive multi-day workshop (“the workshop”) immediately after the children moved from the mother’s care into the father’s care.

c)Thirdly, orders to prevent the mother having any contact with the children for a period of 90 days. The issue of the mother’s ongoing time and communications with the children after the expiry of the 90 day period was adjourned.

3Given the nature of the workshop and complications arising from the Western Australian COVID-19 related travel / quarantine restrictions applicable to the Program providers who must travel to Western Australia to conduct the workshop, the September 2020 Orders were framed on the basis that the children would move into the father’s care and participate in the workshop during the October 2020 school holidays. Those arrangements have now been made and the children are due to move from the mother’s care to the father’s care and commence the workshop today (5 October 2020).

4On 22 September 2020, the mother filed an appeal against the September 2020 Orders. She seeks a stay of paragraphs 1 to 7 inclusive, 14 to 30 inclusive and paragraph 33. In short, the mother seeks to stay the placement of the children into the father’s care and their participation in the workshop pending the hearing and determination of her appeal.

5Both the father and the Independent Children’s Lawyer (“ICL”) oppose the mother’s application for the stay and seek that it be dismissed.

6I heard the stay application on Friday, 2 October 2020. The parties and the ICL were all represented by counsel and all made submissions. I reserved my decision until this morning, Monday 5 October 2020.

What are the applicable legal principles?

7In determining this application I have had regard to Rule 22.11 of the Family Law Rules 2004 (Cth).

8In Aldridge & Keaton (Stay Appeal)[2] the Full Court discussed the principles relevant to the determination of a stay application and observed that the authorities stress the discretionary nature of the stay application which should be determined on its merits.[3] In its discussion, the Full Court identified the following relevant principles:

[2] Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106.

[3] Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106, [18].

a)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.

b)A person who has obtained a judgment is entitled to the benefit of that judgment.

c)A person who has obtained a judgment is entitled to presume that the judgment is correct.

d)The mere filing of an appeal is insufficient to grant a stay.

e)The bona fides of the applicant for the stay.

f)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.

g)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.[4]

h)Some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case.

i)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.

j)The desirability of limiting the frequency of any change in a child’s living arrangements.

k)The best interests of the child the subject of the proceedings are a significant consideration.[5]

[4] That risk has been described in various terms, including by Dawson J in Federal Commissioner of Taxation v Myer Emporium Ltd (1986) 160 CLR 220 at 223 as the identification of a “real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed.”

[5] In Kwon and Lee (2006) FLC 93-287, the Full Court accepted the reasoning in B v B (Re Jurisdiction) (2003) FLC 93-136 that a stay was not a parenting order under the Family Law Act 1975 (Cth) so the paramountcy of the best interests of the child did not apply.

9In Aldridge & Keaton at [36], the Full Court also referred to the Full Court’s decision in K & B and said as follows:

In K & B (2006) FLC 93-288 the Full Court dismissed a stay appeal where it found that the arrangements which existed for the particular child at the time of trial were not satisfactory, and therefore the maintenance of the status quo pending the determination of the substantive appeal was not in the child’s best interests. The Full Court, at paragraph 32, explained why in a parenting appeal, the granting of a stay to maintain a “status quo” is not always appropriate, or the best interests of a child may dictate refusal of a stay as appropriate. Their Honours said:

The granting or refusal of a stay involves an exercise of discretion by a trial Judge. Whilst such discretion must be exercised judicially, in cases involving children, we accept that from time to time circumstances in existence at the date of the orders, or which occur from the date of orders until the hearing of a stay application, may be very relevant matters to be considered in the exercise of discretion in determining whether or not to grant a stay. The interests of children would not be promoted by an inflexible requirement or presumption in every case to maintain the status quo prior to the making of orders the subject of the stay application, and to ignore unsatisfactory arrangements at the time of the orders, or significant events which have occurred after the making of those orders.

What is the relevant background?

10In the introduction to my September 2020 reasons for decision, I summarised the issues before the court for the purposes of the trial in the following terms:[6]

[Ms Milton] (the “mother”) and [Mr Milton] (the “father”) were unable to reach final agreement about parenting issues concerning their two children: [Child A] aged 13 and [Child B] aged 12. The proceedings were complicated by the mother’s steadfast belief that the father has sexually abused the children (in the context of bathing them and co-sleeping with them) and that he continues to pose an unacceptable risk of harming the children: psychologically, physically and sexually. As a consequence, the children have not spent time with the father since early 2017 and, at present, have no functional relationship with him. This is against the background that as a child, the mother was sexually abused by her step-father over a number of years. For the reasons that follow, I am satisfied that the father did not abuse Child A and Child B and that he does not pose a risk of harm to them. On the other hand, I am satisfied that the mother has psychologically harmed the children and she poses a significant ongoing risk of psychological harming the children in the future.

The court is faced with a stark choice: either (1) leave the children in the care of the mother, in the knowledge that in so doing the children will inevitably have no relationship with the father and their narrative of having been sexually abused by him will not be challenged (and will be further reinforced). In those circumstances, there is a substantial risk that the children will grow into adults who falsely believe that their father sexually abused them: a belief that may significantly compromise their mental health and psychosocial functioning for the remainder of their lives; or (2) place the children in the care of the father, in the knowledge that the children will find the change traumatic and may not settle in the longer term. However, allied to that is the prospect that the children will come to learn and understand that they were not sexually abused, sparing them a lifetime of believing otherwise. The father is also the best candidate to promote the children’s relationships with the extended maternal and paternal families, in circumstances where the mother has isolated herself and the children from the wider family system. In essence, this is a case about balancing the risks of short-term versus long-term harm.

[6] Milton and Milton [2020] FCWA 152, [1] and [2].

11Ultimately I made the September 2020 Orders as I was satisfied that:[7]

a)Firstly, the children have suffered significant, ongoing psychological harm whilst in the mother’s care and that they are at risk of significant, ongoing, long term psychological harm if they remain in her care, including into their adulthood. On the other hand, I was not satisfied that the children have suffered any significant harm in the father’s care in the past, or that the father poses a risk of harm to them in the future if they move to live with him.

b)Secondly, whilst I was satisfied that the children have a close and loving relationship with the mother, it is a very harmful relationship from the children’s point of view. If the children remain in the mother’s care, then I considered it was inevitable that they would not re-establish a meaningful relationship with the father and it is highly likely they would move into puberty and adulthood continuing to falsely believe that their father sexually abused them. On the other hand, if the children move to live with the father, with the transition undertaken through the Program, then it was more likely that the children will be able to re-establish a meaningful relationship with the father, as well as develop a relationship with the mother that is less harmful to them.

c)Thirdly, I accepted the children have expressed the wish to continue to live with the mother and have no contact with the father and also I accepted that the change in living arrangements may be very traumatic for the children in the short term. However, I was satisfied that the medium and long term risks of continuing to live with the mother outweighed the short term risks they are likely to suffer from moving to live with the father.

d)Fourthly, unlike the mother, I was satisfied that the father is able to meet the children’s needs, including with the support of the Program and his partner, [Ms B].

e)Fifthly, I was satisfied that the orders for the family to engage in the Program was reasonable in the circumstances and would enable the children and the parties to receive immediate support and assistance from professional therapeutic providers.

f)Finally, I was not satisfied that the option of leaving the children in the mother’s care whilst the family underwent further family therapy had any likelihood of success, due to all previous attempts ending in failure and my having no confidence that the mother would either support the children’s engagement in such a process or commit to such therapy herself. In addition, I was satisfied that the “timing” is important in this case, particularly given that the children will soon be going through puberty.

[7] Milton and Milton [2020] FCWA 152, [214] and [215].

12Both parties filed up to date financial statements in the lead up to the trial.[8] The father’s financial statement revealed that the father had a total average weekly income of $2,956; total weekly personal expenses of $3,987; assets totalling $641,311 (including his home worth approximately $600,000); and liabilities totalling $221,530 (including a mortgage of $140,000 and loan from Ms B of $80,000). The mother’s financial statement revealed that the mother had total average weekly income of $1,444; total weekly personal expenses of approximately $1,474; assets totalling approximately $372,320 (including her home worth approximately $370,000) and liabilities totalling $259,434 (including a mortgage of approximately $169,000 and a loan to her partner of $50,000).

[8] Refer to the father’s financial statement filed on 22 May 2020 and the mother’s financial statement filed on 4 June 2020.

13The mother swore an affidavit in support of her stay application.[9] In summary, the salient matters raised by the mother were as follows:

a)By letter dated 15 September 2020, the mother’s solicitors gave the father’s solicitors and the ICL notice of her intention to appeal the decision.

b)The mother then lodged her notice of appeal on 22 September 2020.

c)Although the mother has made enquiries with the appeal registry about when the appeal is likely to be listed, there is currently no set date.

d)The children are progressing well at school and Child B has just been elected as a school councillor.

e)The mother was concerned that if the stay is not granted, then the children will suffer “unrepairable” trauma from being removed from her care, participating in the Program and living with the father, in circumstances where they will have no contact with her for 90 days. (Whilst I accept that this is the mother’s view, it was not the evidence of any of the expert/professional witnesses at trial and it was not my finding.)

[9] Refer to the mother’s Form 2 application and affidavit in support filed on 24 September 2020.

14Ms B, swore an affidavit in support of the father’s Form 2A response[10] (in circumstances where the father was working away on site and not available to do so himself in the time available). In summary, the salient matters raised by Ms B were as follows:

[10] Refer to the father’s Form 2A Response and Ms B’s affidavit in support filed on 30 September 2020.

a)On 19 June 2020 Ms B sold her home and netted the amount of approximately $98,000. Ms B lent the father the money she received from the sale of her home to meet some of the costs associated with the trial and to fund the Program.

b)At the conclusion of the trial, the father’s total legal fees were nearly $160,000.

c)After the September 2020 Orders were made, the father liaised with the Program providers for them to deliver the workshop to the family in Western Australia during the October 2020 school holidays. On 11 September 2020, [Mr D], one of the Program providers, received notification from the WA Police that his application to travel to Western Australia had been approved, but subject to mandatory 14 day hotel quarantine requirements.

d)Mr D and a second Program provider, [Ms S], who was also required to undergo the mandatory 14 day hotel quarantine requirements, departed from [the Eastern States] to Perth respectively on 18 September 2020, to undertake quarantine so that they can then deliver the workshop, which is scheduled to commence on 5 October 2020. The third Program provider, who is [also travelling from the Eastern States], was able to travel to Perth on a later date, on the basis of modified quarantine requirements.

e)To date, the father has paid $46,292.80 in relation to the Program, including airfares, quarantine fees of approximately $5,000, the workshop costs of approximately $31,000 and additional accommodation expenses of nearly $5,000.

f)None of the Program costs are refundable and neither the father nor Ms B has the financial resources to pay these costs again.

g)As from 1 October 2020, the father has taken leave from his employment for an indefinite period, to facilitate the children moving into his care. In addition, Ms B has also arranged to take (initially) five months off work to support the children.

What were the submissions made by each party and the ICL?

15In summary, the submissions of the parties and the ICL were as follows.

16Mr Hooper, the senior counsel for the mother (who did not appear for the mother at the trial) submitted that:

a)There was merit in the mother’s grounds of appeal. (That submission was almost bald, with little explanation given as to why the mother said her appeal had merit.)

b)The mother would prosecute her appeal without delay, and would give a written undertaking to that effect.

c)The orders represented a very significant change in the children’s current living arrangements and may be traumatic for them, particularly in circumstances where the orders provided that the mother and children would have no contact with each other for three months and the children would be required to change schools.

d)If the stay was not granted, then the mother’s appeal would be rendered nugatory.

17In relation to the orders for the family’s participation in the Program, Mr Hooper acknowledged that he did not maintain that it was a step the court could not take; it may be an entirely appropriate step in certain circumstances; and on appeal, the Full Court may well find that this case was one of those cases where it was an entirely appropriate step.

18Mrs Farmer, the counsel for the father (who also appeared for the father at the trial) submitted that:

a)There was no merit in the mother’s grounds of appeal.

b)There was no certainty about when the appeal could be dealt with and there may well be significant delays, particularly in this case where “timing” was important.

c)Granting the stay would leave the children in the mother’s care pending the appeal. The best interests of the children would not be promoted by this course of action, given my findings at trial that the children have suffered significant, ongoing psychological harm in the mother’s care to date and the significant ongoing risk that the mother continues to pose to them.

d)Failing to grant the stay would not render the mother’s appeal nugatory. In particular, the change in parental responsibility, the live with arrangements and the children’s school enrolment could all be reversed if the mother’s appeal is successful. On the other hand, the granting of the stay would cause very significant financial hardship to the father and may well render nugatory, the benefits of his judgment as and when the appeal is eventually dismissed. This is because the father would not be in a financial position to pay the costs of the Program again.

19Mrs Needham, the counsel for the ICL (who also appeared for the ICL at trial) chose to focus on matters only insofar as they impacted on the interests of the children. She submitted that:

a)The best interests of the children would not be promoted by granting the stay, given my findings at trial in relation to the risk of harm posed by each of the parents to the children.

b)There was little certainty about when the appeal could be dealt with and delay would not be in the children’s interests.

c)There was considerable uncertainty about when or if the children could participate in the Program if the stay was granted, particularly given the uncertainties around whether the father would be able to fund the costs of the Program again. The ICL pointed to the fact that the mother had not made any constructive proposal to address this issue. If neither the mother nor the father could meet the costs of having to fund part or all of the Program again, then there was a real risk to the father (and the children) that a stay may render the trial decision nugatory.

Discussion and conclusions

20The mother’s Notice of Appeal was in evidence before me. It contains four separate grounds of appeal, each containing a number of sub-headings. In summary the mother asserted that I: (1) failed to give any or adequate weight to certain evidence; (2) erred in fact and law in relation to certain findings about family and domestic violence, amongst other things; (3) erroneously found that the children were at a significant ongoing risk of psychological harm from the mother; and (4) erroneously found that the father does not pose a risk to the children.

21Relevantly, the mother’s grounds specifically challenged my findings in relation to the risk of harm to the children posed by each of the mother and the father. To the extent that Mr Hooper may have suggested that it was relevant to a consideration of the mother’s stay application that my orders did not give the mother the opportunity to reconsider her beliefs about the father in the light of my decision, I am not persuaded that this matter has any relevance in this case. It was never the mother’s case at trial that she wished for the opportunity to reconsider her views in light of whatever decision I ultimately delivered.

22I agree with the father’s counsel that the mother’s grounds of appeal largely related to the weight I had given to certain evidence, including by attempting to “cherry pick” certain parts of the evidence. This was in the context that at trial, I was required to assess literally hundreds of pages of affidavit evidence, numerous tendered documents and recordings, and many days of oral evidence of the witnesses. I also agree with the father’s counsel’s submission in relation to the general reluctance of appeal courts to overturn a first instance decision on the grounds of conflicting assessments of matters of weight. In short, on a preliminary assessment, I am not persuaded that the grounds of appeal disclose any significant merit, albeit I also accept that as the trial judge, I do not have the advantage of an appeal court in being able to bring a fresh perspective to a consideration of the merits of the appeal.

23The next Full Court sittings in Perth are scheduled to take place in March 2021 and in the usual course, the mother’s appeal should be ready in time for it to be heard during those sittings. Although the mother’s position was that she would prosecute her appeal without delay, she has not yet made any application to expedite the appeal. Currently, the Full Court is conducting all appeal hearings electronically and is not dependent upon members of the Full Court having to travel to Perth. It is uncertain how quickly the appeal could be heard by the Full Court if it was expedited, albeit I am satisfied that there is at least a possibility that it could be heard before the end of this calendar year. When the Full Court would be in a position to hand down its decision is unknown. The potential for delay is a significant factor, particularly insofar as it may impact on the interests of the children. I refer to this matter further later in these reasons.

24I am satisfied that granting the stay would cause significant financial hardship to the father. The father has paid over $46,000 to date to the Program providers for the workshop, which is scheduled to start today. The father’s position is that none of the Program costs are refundable and neither he nor Ms B has the financial resources to pay these costs again. Although the mother appeared not to accept that this was the case, it remains the case that: (1) at least some of the father’s paid costs will be “thrown away” if the workshop does not proceed; (2) the mother has made no proposal in relation to the Program costs; and (3) I am not satisfied on the available evidence that the parties have the financial wherewithal to meet a significant part or all of the Program again either by paying from their existing resources or alternatively borrowing the funds.[11]

[11]I accept it may be possible for the parties to sell their respective homes and use the net proceeds to meet the Program costs again. However, on the available evidence, I am not satisfied that such a course of action is appropriate.

25I am not persuaded that a refusal to grant the stay would render the mother’s appeal nugatory. In the event the mother’s appeal is successful and matter is remitted for hearing before another judge (as the mother seeks), then the orders in relation to parental responsibility, live with arrangements and school enrolment may be reversed, resulting in the children returning to live with the mother. Refusing to grant the stay means that the children would still participate in the Program, including the workshop. However, even in this event, it cannot be said that there is a real risk that the mother cannot be restored substantially to her former position. On the other hand: (1) if the stay is granted, and (2) a substantial part or all the costs paid by the father to date to the Program providers are non-refundable, and (3) the parties are unable to meet the costs again, and (4) the mother is ultimately unsuccessful in her appeal, then I am satisfied that there is a real risk that the father will effectively lose the benefit of a significant component of the September 2020 Orders: the family’s ability to participate in the Program.

26The interests of the children are a significant consideration. Pursuant to the September 2020 orders, the children are due to move into the father’s care and commence the workshop today. As a consequence of the September 2020 Orders, the children will have to change schools again (noting that the children have already had to change schools on one occasion when the mother unilaterally moved from Perth to [City A]). In the event that the stay is not granted and the mother succeeds in her appeal, then there could be yet another significant move for the children. I accept that it is desirable to limit the frequency of change in the children’s living arrangements.

27However, balanced against this, I also have regard to the children’s extremely unsatisfactory living arrangements at the time of the trial, including my findings in relation to the risks of harm posed to children by each of the parties; and the adverse impacts on the children from any delays in the appeal being dealt, particularly having regard to the importance of timing in this case. Although the change in living arrangements may be traumatic for the children in the short term, I agree with the counsel for the father and the ICL that the interests of the children continue to be best served by them now moving immediately into the father’s full time care, with the transition being facilitated by the Program. In this regard, the children will have the benefit of immediate support and assistance from the Program’s professional therapeutic providers to manage the change in their living arrangements, both during the workshop and through the Program’s aftercare services.

28In conclusion, I intend to dismiss the mother’s application for a stay.

This version of the judgment which has been anonymised to remove identifying particulars has also been amended in parts to correct minor grammatical and spelling errors.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KV
Associate

5 OCTOBER 2020