Mohammed Salah and Gastana (No. 2)

[2011] FamCA 1084

FAMILY COURT OF AUSTRALIA

MOHAMMED SALAH & GASTANA (NO. 2) [2011] FamCA 1084

FAMILY LAW – CHILDREN – Application for a stay of orders pending appeal– where the application for a stay is heard by the trial judge – where the trial judge must consider reasonable or substantial prospect of success on the appeal in determining discretion for a stay – where the appeal seeks the same orders as trial – where the father misunderstood the nature of his application – where the father thought the application for a stay of orders was a fresh application for parenting – where the father objects to the children going interstate with the mother – where the discretionary determination of a stay application must be based on exceptional circumstances – where there are no exceptional circumstances – whether granting a stay would render the appeal nugatory – where granting of a stay would not render the appeal nugatory – where a stay is not granted because the appeal does not challenge any findings of fact – where the father’s complaints are in relation to day to day care of the children – where the ICL seeks costs – where the conduct of the parties is considered when making a costs order – where the father is ordered to pay the mother’s costs – where the father is ordered to pay the costs of the ICL

Family Law Act 1975 (Cth) s 117(2A)(a), (c) and (e)

Jennings Construction Ltd v Burgundy Royale Investments Proprietary Limited (No 1) (1986) 161 CLR 681

APPLICANT: Mr Mohammed Salah

RESPONDENT: Ms Gastana

INDEPENDENT CHILDREN’S LAWYER: Damien Carter

FILE NUMBER: BRC 6504 of 2009

DATE DELIVERED: 27 July 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 27 July 2011

REPRESENTATION

FOR THE APPLICANT: Mr Mohammed Salah in person

COUNSEL FOR THE RESPONDENT: Mr G S Andrew

SOLICITOR FOR THE RESPONDENT: Legal Aid Queensland

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr N B McGregor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Carter Farquar

Orders

Accordingly I make the following formal orders in today’s proceedings:

1. The father’s Application in a Case filed on 21 July 2011 is dismissed.

2. The father shall pay the mother’s costs of and incidental to the application in a case fixed in the sum of $2,431.

3. The father shall also pay the Independent Children’s Lawyer’s costs of and incidental to the Application in a Case fixed in the sum of $1,341.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mohammed Salah & Gastana (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2788 of 2009

Mr Mohammed Salah

Applicant

And

Ms Gastana

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 8, 9 and 10 March this year, over those three days, I presided over a trial between Mr Mohammed Salah, the applicant father, and Ms Gastana, the respondent mother, the parents of two young children, who were locked in substantial dispute about all aspects of the parenting arrangements between them in respect of those two young children.  The children, a boy and a girl, are aged three and two.  Included in the orders that the father sought at that trial, which numbered in their many, was an order that the mother must not relocate her residence and must have written permission from the other parent, the father or a Court order to take the children out of Australia and to take the children out of the State of Queensland.

2. Now, as I understood the father’s case at the trial, principally he was against the mother taking the children out of the State and remaining away permanently, thus restricting or seriously interfering with the father’s ability to spend time with the children and to have a meaningful relationship with them.  At the trial, the mother indicated no desire to do that and sought no order allowing her to do so.  The father made it clear also that he was opposed to the mother even taking the children on a short-time trip, visit or holiday to Canberra, the city of her origin before she came to Queensland some years back, and met the father.  It is the city where her mother and her siblings and their families currently still live.  The father, in summary, regarded those people as inappropriate persons for the children to spend any time with.

3. I determined against the father’s case in that regard and found, really on the basis of matters of credit, that I was not satisfied that the mother’s extended family consisted of people who were inappropriate for the children to spend any time with.  Ultimately, I made orders that allowed the parties, particularly the mother, to be able to take the two young children interstate for periods of up to one week on up to two occasions each year.  I did so in paragraph 11 of the orders that I expressly made.  I handed down my decision in the matter and those orders were made on 15 June 2011.

4. Paragraph 11 of the orders that I have just referred to provided for those two trips interstate by each of the parents to be conditioned on a number of matters.  Firstly, that they be not less than four months apart in the year.  Secondly, that the parent proposing to travel shall provide notice in writing, a written itinerary of the proposed travel and contact details for the children whilst they are travelling, no less than four weeks prior to the departure date and, of course, consequently during the period that they would be away, the other parent’s time with the children would be suspended. 

5. Now, on 26 June 2011, the mother provided written notice to the father in the following terms:

   I’m planning on taking the children for a holiday interstate, from 29 July, be back in seven days.  I’m yet to book flights, as we might drive instead.  I will let you know exactly next week, also what suits you best for me to see [the child M] for three hours on his birthday.  [Ms Gastana].

6. That note was provided to the father through the contact centre at which the children are handed over as between the parents, pursuant to my orders and pursuant to the contact centre’s requirements.  Some days later, as she indicated in the first note that I just read out, on 1 July 2011, the mother provided another note in the same means through the contact centre to the father.  It said this:

   I advised you last week that I will be going interstate, leaving on 29 July by car and returning in seven days time, travelling to Canberra.  We will be staying at …, in the ACT and the contact number is … .

7. I understand that number the mother gave to be the mother’s mobile telephone number.  The mother then talks about something not relevant, the birthday issue, and then says at the conclusion, “I will rewrite the address, …, ACT, Canberra.” 

8. I consider in the circumstances that she clearly complied with the requirements of paragraph 11, which were the conditions that were imposed in order for her to be able to exercise the right to take the children interstate as the orders provide.  I am satisfied that those two notes amounted to reasonable compliance with the conditions that I had imposed.

9. Approximately a week later, on 8 July 2011, and within the requisite period provided within the rules for the father to appeal my decision, the father did so.  He lodged a notice of appeal in the Full Court of this Court.  In the “grounds of appeal” section of that document, he sets out 11 grounds.  I have read those and I do not consider any of them to immediately attack, if I can use that expression, paragraph 11 of the orders that I made or the fact finding upon which I reached the decision about that particular order.

10. The orders that the father seeks in the notice of appeal are, as he says, exactly the same as the parenting orders he sought at the trial and a copy of those is exhibited to his notice of appeal and that is the document from which I read.  Paragraph 10 on page 4 of 7 is where he sought the order about the mother not being able to move or having to have written permission or an order of the Court to take the children out of Australia or Queensland.

11. Now, on 21 July, the father and, of course, knowing that the mother has, for a month, planned a trip to leave Brisbane on Friday, 29 July, filed an application in a case and a supporting affidavit in which he seeks an order that I stay the operation of paragraph 11 of my orders made 15 June 2011 pending the hearing of his appeal.

12. The father filed an affidavit, which was very short in its content having only some four paragraphs, but having some attachments which included my reasons and orders and the second of the two notes that the mother provided to him through the contact centre dated 1 July 2011, but without explanation or reference thereto, did not contain the first that was tendered into evidence as exhibit 1 today via the mother’s side.

13. Now, as I read the father’s affidavit and as I heard his submissions this morning, he makes two points, essentially, as to why the mother should not be allowed to travel to Canberra.  Firstly, he says that her decision to drive in her car to Canberra and take the three-year old and two-year old children with her in the car is one that is not safe.  That it is not safe for the children to travel by car for the time and distance that it would take to get from Brisbane to Canberra and then back from Canberra to Brisbane at the end of the week’s holiday.

14. The second is that he apparently already did some sort of search – probably by way of the internet – of the address that the mother provided and asserts that it was an address that belonged to a business called Business BB and said he did not understand why his children would be staying at those premises.  Now, it appeared to me:  (a) on the written material filed by the father and;  (b) from his submissions, that he fundamentally misunderstands or at least when he came here today, fundamentally misunderstood the nature of a stay application.  It seemed to me, as I indicated to him, that truly he was bringing what appears to be a fresh application in substantive parenting proceedings seeking again to revisit the question of whether or not the mother should be allowed to take the two children from Brisbane to Canberra, particularly as she proposes on this occasion.  I say that because in no way did he address what I understand to be the legal principles that guide me in determining stay applications made in respect of orders of mine that have been subject to and are pending an appeal.

15. Mr Andrew of counsel who appeared for the mother, who had also appeared at trial for the mother, filed with my leave this morning and relied upon an affidavit of the mother in which she deposed to the fact that she sought to originally book flights and fly down but the cost was prohibitive so she determined that she would drive.  Her affidavit also says that she has considered she may make an overnight stop and will investigate booking accommodation if she needs to closer to the time of departure.

16. Secondly, she has indicated that the premises - the address she gave where she will be staying - is indeed a premises from which a business is operated but that it also has a residence in the form of a granny flat there - a two bedroom granny flat - which she has arranged to stay in through friends of friends who own those premises.  That all having been said in her evidence, though, Mr Andrew pointed out to me that the discretionary determination of a stay application is something only to be done in favour of the applicant, if I am satisfied in respect of a number of matters.  Firstly, he submitted that there must be exceptional circumstances shown by the applicant and he said that the father, when referring to the issue of unsafe travel and inappropriateness of the accommodation, has not really shown that in a way that I ought to find is appropriate.

17. Mr Andrew went on to say that two of the matters that I must also consider in the exercise of my discretion are as follows:  Firstly, I must consider whether there is any reasonable or substantial prospect of success on the appeal and then, secondly, whether the refusal of the grant of the stay would render the appeal nugatory.  Now, I accept that those propositions of law are, indeed, a correct summary of the legal position.  Indeed, I refer to a decision of Brennan J, as he then was, of the High Court of Australia in the matter cited as Jennings Construction Ltd v Burgundy Royale Investments Proprietary Limited (No 1) (1986) 161 CLR 681. His Honour was considering a stay application that was brought to the High Court in respect of the subject matter of an application for special leave to appeal to that court. In paragraph 7 of that judgement, his Honour said this:

    In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court's discretion.  In each case when the Court is satisfied a stay is required to preserve the subject matter of the litigation, it is relevant to consider - first, whether there is a substantial prospect that special leave to appeal will be granted; secondly -

18. And I translate that in respect to this application to be whether there is a substantial prospect that the appeal will be successful.  His Honour went on, relevantly:

    Thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.

19. In other words, I refer to that passage as authoritative support for the submissions made by Mr Andrew.

20. Now, Mr McGregor of counsel, who appears on behalf of the independent children’s lawyer today, who also appeared at the trial in this matter, made succinct submissions that the father is really not attacking order 11 at all and is really just complaining about the implementation of it.  In three short, succinct submissions, Mr McGregor asserted firstly that it was not appropriate to attack order 11 on the basis that the father has.  Secondly, that the decisions as to how the children are actually cared for and driven to Canberra are the mother’s alone, pursuant to my orders and, thirdly, that not granting the stay, would not render the appeal nugatory in any event and therefore there would be no prejudice suffered by the father.

21. Having heard the submissions about the law, I gave the father another opportunity to be heard and he, effectively, repeated and restated his case as I previously outlined it, he also started making a case that he was really troubled about the mother not returning the children to Queensland at the end of her stay.  I satisfied him that although I cannot guarantee that she will, I can certainly guarantee him that, if she does not, there will be consequences in that the processes of this court would readily be accessed and activated by the father to ensure that they are returned.  However, I get no sense in this case at all that the mother has no intention of returning the children to Queensland at the end of what is just a short stay for them to spend time with her family and, particularly, one of her female relatives who has recently had twin babies that the mother has not yet seen.

22. I determine that the submissions made by Mr McGregor and by Mr Andrew have merit and as I said to the father, I acknowledged that he is not a lawyer and accept that it was understandable that he might not fully appreciate and understand the principles of law that apply.  I nevertheless have to apply the law in this Court, even where litigants who are representing themselves in person do not understand the law and cannot, because of their lack of knowledge of the law, run a case within the principles of law that apply or make submissions that really succinctly and appropriately put their case within the parameters of the principles of law that apply.  As I might have said at the trial, a lack of legal knowledge, as was said by McHugh J when he was on the High Court, is a misfortune for litigants in person, rather than a privilege.

23. Firstly, I am not satisfied that it really is an appropriate stay application.  The father has not satisfied me that he has substantial prospects of success in respect of the appeal and, most particularly, I say in that regard, in respect of paragraph 11.  I say that because he does not appear to have challenged, in any way, the findings of fact upon which I have based my orders in paragraph 11 or the principles of law that I discussed and applied in my decision.  In any event, it seems to me that his current complaint no longer relates in any way to the nature of the complaint he made during the course of the trial, so I am not satisfied that refusal to grant the stay renders, in any way, his appeal nugatory.  I do not consider that he is properly attacking paragraph 11 and it seems, as I said, to be that he is simply complaining about the way in which it is to be implemented and that is not what the stay application is about.

24. He has not satisfied me, bearing in mind that he is complaining about the way that the mother is implementing paragraph 11, that the case is exceptional or special enough for the stay to be granted and for the mother to be denied the ability to act with these children in accordance with the orders and the judgement she obtained from me in parenting proceedings properly and appropriately conducted.  I do not consider that refusal of the stay, in any way, prevents the father from continuing to argue his appeal and even if he considers appropriate, arguing to the Full Court that paragraph 11 is inappropriate and that I somehow erred or made a mistake when I decided to make the order that was in paragraph 11.  He is entitled to do that.  I am satisfied that the mother has parental responsibility on a day to day basis and, indeed, in respect of most major long term issues and that having given her that responsibility, I am indeed satisfied that she will exercise it appropriately and bear in mind safety issues, welfare concerns and the like in respect of these children:

    (a)in respect of travel and mode of travel and the need to have breaks, the need to feed and hydrate the children properly when travelling, etcetera and;

    (b)in respect of appropriateness of accommodation that she stays in, in Canberra.

25. The complaints seem principally about those matters.  I am not at all moved by the father’s complaints to consider that there is anything special about this stay application such as to grant the stay and, accordingly, I refuse to grant it and dismiss the application. 

26. Having determined this application against the applicant and dismissed it completely, the respondent mother through her counsel, Mr Andrew, asks that I make an order that the father, wholly unsuccessful in the proceedings, pay the mother’s costs of and incidental to the proceedings fixed in the sum of $2431. 

27. Counsel for the independent children’s lawyer, in the same vein asks that I make an order that the father pay the ICLs costs of and incidental to the proceedings fixed in the sum of $1341.  The father opposes it, saying in effect two things:  (1) that he is simply exercising his rights, and (2) that he is impecunious, still unemployed as he was at the time of the trial although he is seeking to obtain work.

28. The determination of issues surrounding costs in proceedings in this court is to be done in accordance with the statutory provisions of section 117 of the Family Law Act. That section significantly starts out with the premise that in proceedings under this Act, subject to a number of exceptions that are then set out in the Act, each party to proceedings shall bear his or her own costs.

29. That provision, particularly in parenting cases, accords with the general notion that parents usually are acting in what they consider to be the best interests of their children when litigating in this Court about their children, and therefore ought not to be financially penalised in some way when that is really what they are doing. 

1. However, the exceptions that I referred to that are listed include, significantly, this exception that is set out in subsection (2) of 117: this exception, gives me the discretion to order costs and to make any orders as to costs or security for costs as I consider just in the circumstances. In considering what order if any I should make in circumstances where I consider such an order just, I am required by section 117(2A) of the Act to have regard to a number of listed matters.

2. In this particular case, Mr Andrew, counsel for the mother, says that some of those matters are particularly relevant and would assist me or go as far as causing me to determine that a costs order as he seeks for his client is just.  He submits that the matter that is listed in subsection (e) is relevant, that is, whether any party to the proceedings has been wholly unsuccessful in the proceedings, and as is clear in parenting proceedings in this court, often it is impossible to say that one parent or the other has been wholly unsuccessful.

3. However, Mr Andrew is correct when he submits in this particular instance that in this application brought before the court today by the father, he – that is, the father, has indeed been wholly unsuccessful.  Indeed, Mr Andrew submitted, and I find with some merit, that the application as brought by the father was doomed to fail.

4. Mr Andrew also said that subparagraph (c) of section 117(2A) applied and would give me some assistance in determining that an order as he seeks is just in the circumstances. That section relevantly says:

   The conduct of the parties to the proceedings in relation to the proceedings, including the conduct of the parties in relation to various aspects of the proceedings such as pleadings, particulars, discovery –

   Mr Andrew says that in this case the father simply, having been advised by the mother through the two notes that are in evidence, simply chose to thereafter lodge his appeal, not serve it on the mother for approximately 11 days, then two days later lodged his application in a case, and again did not serve that on the mother for some four or five days, and in no way sought to negotiate with the mother on the particular point.

5. Those facts certainly suggest that the matter might have been more appropriately dealt with by the father than simply launching into litigation and filing material and then delaying in serving it on the mother in the way that he has.  Mr Andrew points out that the mother has been and is in receipt of assistance from the Legal Aid office, and he handed up the terms of that grant for me to consider.

6. The amount that he asks for is the maximum amount of the grant, which as everyone involved in the family law profession and the practice of family law knows is indeed modest in comparison to what fees are reasonably charged in private fee arrangements.  The final matter for my consideration pursuant to 117(2A)(a) is the financial circumstances of each of the parties to the proceedings.

7. Clearly the mother is in receipt of Legal Aid, so has met the means test part of the provisions of the grant of Legal Aid.  As I recall her circumstances, she was in receipt of social security benefits, being principally a full-time parent for three teenage daughters and these two young children, and also receiving minimal, if any, child support from the father. 

8. The only material that I have before me in respect of the father’s financial circumstances is him asserting from the bar table that, as he was at the trial. he still remains unemployed, and secondly that he has no assets.  The father submitted that I ought not make a costs order because of his financial position, but principally because he was doing nothing more than exercising his rights.

9. I reminded the father that when a person, even one representing themselves, determines that they will take action in court in exercise of their rights, they cannot do so without regard for and completely oblivious to the possible consequences of not succeeding in what they consider to be the exercise of their rights.

10. In this particular case I am somewhat concerned about the fact that the father, representing himself, asserts that he is impecunious and without employment when he is supporting not only himself but his wife and four children of the relationship with her, as well as having an obligation to the  two children of the relationship that he had with Ms Gastana.

11. Mr McGregor made the submission in support of his application that there is authority supporting the notion that impecuniosity is no bar in these proceedings when other discretionary matters indicate that a costs order should be made.  I accept that submission.  In all the circumstances of this case, I am satisfied that it is just to make an order that the father pay the mother’s costs of and incidental to the application in a case that was filed by him and determined by me today, and I will do so.  I am also satisfied that it is just that the father pay the costs of the independent children’s lawyer of and incidental to responding to the application today. 

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 27 July 2011.

Associate: 

Date:  14 June 2012