Morrall and Olmos
[2016] FamCA 1019
•24 November 2016
FAMILY COURT OF AUSTRALIA
| MORRALL & OLMOS | [2016] FamCA 1019 |
| FAMILY LAW – CHILDREN – Application for a stay of orders pending appeal– where the application for a stay is heard by the trial judge |
| Family Law Act 1975 (Cth) |
| Cape & Cape [2013] FamCAFC 114 |
| APPLICANT: | Mr Morrall |
| RESPONDENT: | Ms Olmos |
| FILE NUMBER: | BRC | 11732 | of | 2012 |
| DATE DELIVERED: | 24 November 2016 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Launceston – the applicant by video-link from the Sydney Registry and the respondent by video-link from the Canberra Registry |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 16 November 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lethbridge SC |
| SOLICITOR FOR THE APPLICANT: | Dobinson Davey Clifford Simpson |
| COUNSEL FOR THE RESPONDENT: | Mr Page QC |
| SOLICITOR FOR THE RESPONDENT: | Watts McCray Lawyers |
Orders
The father’s application to stay the orders made in this Court on 23 September 2016 is dismissed.
Order pending the outcome of the appeal on the mother’s oral application an order that;
2.1The mother will return B born … 2010 (‘the child’) to Australia in the event that the appeal by the father against the orders made 23 September 2016 is successful and an order is made for the return the child to Australia either by the Full Court of the Family Court of Australia or by a court to which any parenting and relocation proceedings may be remitted for rehearing.
2.2Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Costs of this application are reserved.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage senior counsel and counsel to attend.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Morrall & Olmos has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: BRC 11732 of 2012
| Mr Morrall |
Applicant
And
| Ms Olmos |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Mr Morrall (‘the father’) and Ms Olmos (‘the mother’) have been engaged in litigation regarding their daughter the child (‘the child’) who is now aged six.
After a lengthy hearing before me in Canberra between April, May and July 2016 reasons were delivered and orders were made on 23 September 2016 (‘final orders’).
Those final orders permitted the mother to relocate the child permanently to Europe and the mother has taken steps to put those orders into effect.
On 20 October 2016 the father filed an appeal to the final orders and such appeal is fixed for hearing in the Full Court of this Court on 8 December 2016. The appeal was lodged, by the father, within the time limits provided under the Family Law Rules 2004 (Cth).
Shortly after the appeal was lodged the father filed an application in a case seeking a stay of those orders. That application in a case was heard by me in Launceston via video-link between Canberra, Sydney and Launceston on Wednesday 16 November 2016.
It was not argued but, it occurred to me that this determination may be moot. The final orders provided that the mother and child were not permitted to leave Australia for Europe until about one month after the hearing date of the appeal, and that the father had, in any event, consented to the mother and child travelling to Europe in January 2017 for a period of about 4 weeks. After submissions are completed on 8 December 2016, the Full Court is likely to have better insights into the outcome of the appeal than would this Court. However, I have regard to the proverb that there is many a slip twixt the cup and the lip. Those slips can include that the appeal may not be heard on that December 2016 date or the determination may be so finely balanced that it needs months of considered thought and writing. As such I will continue.
MATERIAL PROVIDED TO THE COURT
In these proceedings the father relied upon the following:-
(a)his application in a case filed 26 October 2016;
(b)his affidavit filed 26 October 2016; and
(c)his affidavit filed 15 November 2016.
Senior counsel for the father also provided to the Court and to senior counsel for the mother an outline of his submissions dated 16 November 2016.
The mother relied upon her response to the application in a case and her affidavit in support of that response, both filed 15 November 2016.
In addition to that material I had before me the final orders and the reasons upon which those orders were based.
During the course of that argument I raised with senior counsel for the father the question as to whether I ought to, in any event, stay the operation of order 28 made 23 September 2016.
Senior counsel for the father made no submissions in that regard and senior counsel for the mother made submissions that I ought to make orders similar to those made in Cape & Cape [2013] FamCAFC 114 being order 4 that matter.
For the reasons set out below I have made part of the order giving effect to the mother’s undertaking provided in her affidavit.[1]
[1] At paragraph 83.
After the orders were made on 23 September 2016 it seems not in issue that the father attended at the school a few hours early to collect the child on a day when he would have otherwise collected the child. This led to an exchange between the father and mother and there is a difference as to the version of events in that exchange. I do not propose to make any findings of fact in relation thereto.
I am, however, satisfied that the mother asked the father if he was going to appeal and she did not receive a response. The first response she received from the father was on 13 October 2016 about three weeks after the orders were made.
Each of the parties in their submission seemed to reflect on the other’s behaviour in terms of the events following final orders. Except as otherwise discussed in these reasons I have given no weight, one way or the other, where there is a conflict in the evidence and I will otherwise consider the stay application according to law.
I accept that each of the parties have paid in excess of $250,000 in legal costs.[2] I accept that the mother had taken significant steps in terms of returning to Europe following the making of the final orders including and before being notified of the appeal, albeit in circumstances where the appeal was lodged in time:-
(a)purchasing air tickets, which are available for change at some modest cost;
(b)informing the child of the change:
(c)making arrangements to send property to Europe;
(d)making arrangements to send the family cat;
(e)transporting the mother and the child’s household furniture and effects to Europe, which no doubt can be exchanged at some costs; and
(f)arranging for a new passport for the child which is held by the Court.
[2] Father’s primary affidavit at paragraph 21 and the mother’s primary affidavit at paragraph 68.
In paragraph 21 of Cape & Cape (supra) the Full Court confirmed the principals which govern the determination of a stay application in relation to orders concerning a child:-
21.At the commencement of her reasons for judgment in relation to her orders made on 5 July 2013, her Honour set out in the following accurate terms the principles which govern the determination of a stay application in relation to orders concerning a child:
· the mere filing of an appeal is insufficient to ground a stay;
· the onus to establish a proper basis for the stay is on the applicant for the stay – however it is not necessary for the applicant to demonstrate “special” or “exceptional” circumstances;
· a person who has obtained a judgment is entitled to the benefit of that judgment;
· the person who has obtained a judgment is entitled to presume the judgment is correct;
· the bona fides of the applicant;
· a stay may be granted on terms that are fair to all parties – this may involve a court weighing the balance of convenience and the competing rights of the parties;
· a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant the stay;
· some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
· the desirability of limiting the frequency of any change in a child’s living arrangements;
· the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of a stay for a short period of time; and
· the best interests of the child the subject of the proceedings.
I accept that in this application the mere filing of an appeal is insufficient to ground a stay and that the onus of proof to establish a proper basis for stay is on the father, however, it was not necessary for him to demonstrate ‘special’ or ‘exceptional’ circumstances.
Further, the mother who obtained permission to relocate is entitled to the benefit of that judgment and she is entitled to presume the Judge was correct. Consequently, she was entitled to take the steps she did to re-locate to Europe.
To submit otherwise in the absence of a Notice of Appeal would make a mockery of this principle.
In his submissions senior counsel for the father asked me to accept, for example, that the mother was acting in haste to finalise her ties and the child’s ties with Australia. That principle and the long history of the mother’s desire to return to Europe, her fragile mental health and the history of the litigation outlined in my reasons dated 23 September 2016, that haste is hardly surprising. I do not make that finding of ‘haste on taking steps’.
The next question is the bona fides of the father in terms of the appeal. In this case it was conceded by senior counsel for the mother that there is no issue as to the bona fides of the father and I accept those submissions as set out in the father’s submissions.[3]
[3] Paragraphs 3.4, 3.5 and 3.6.
Given the concessions by both senior counsel the appeal is likely to be heard on 8 December 2016 and reasons are likely to be delivered shortly thereafter, but whether that occurs within 2 months of the hearing (given the father’s consent for the mother and child to travel to Europe for 4 weeks from 7 January 2017 permission) is unclear.
However, I do accept that the appeal is bona fide and I accept that there are serious matters to be argued before the Full Court. The father has an arguable case.
It is the final issues to which I need to turn my mind, that is 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 the best interests of the child the subject of the proceedings.
The circumstances of this case are that the mother seeks to relocate with the child to Europe in accordance with the final orders made by this court, but concedes and undertakes to return to Australia in the event that the appeal is successful. She says she will return to Australia within four weeks of any such determination.
The father agrees that if the stay is allowed, he would consent to the mother travelling to Europe over the January period for four weeks. Accordingly, irrespective of the outcome of this determination, the child would be travelling to Europe with the mother on or about 7 January 2017 and at worst (from the mother’s point of view) returning which would be in about the weekend of the 4 and 5 February 2017.
The child is aware that she is travelling to Europe and that arrangements have been made to dispose of some possessions and move others to Europe. Both parents have made this clear to her.
There is some force in the argument raised by senior counsel for the father as to the significance of the change in residence, the removal of the child from her school in Australia together with her friends, and removal from an English speaking country to a non-English speaking country, albeit the mother has endeavoured to make the child bilingual.
I do not accept that a movement to a foreign non-English speaking country for such a the short period (in terms of this stay application issue) would operate, either way, to impose a risk, let alone any significant risk, to the child.
I had considered the attraction of granting the stay particularly in the light of the child commencing school at the beginning of term in 2017 and the commencement of the new term in Europe is some five or six months later. However, In addition to the matters listed above, I am also concerned about the mother’s health, part of which she refers to in her affidavit in this application. I dealt with my concerns about the mother’s health in my reasons published on 23 September 2016. Some of the many comments and findings made in this area included:-
204.Given all of the evidence I am satisfied that the mother, who is the primary carer, is at a significant risk in regards to her parenting capacity as a consequence of the deterioration of her mental health if she is required to live in Australia.
205.I am satisfied that whilst difficult, it is possible for the father to maintain a relationship with the child if the mother returns to [Europe]. That will not be an optimal relationship, however the task I have is a balancing task.
206.I accept the evidence of the mother and find that she does not consider Australia to be a place where she can or should settle and that she remains feeling displaced. I accept the mother’s evidence that her mental health symptoms have worsened since the consent orders were made in 2014. The mother has sought professional help in the treatment of her depression including hypnotherapy, participation in groups and some levels of cognitive behavioural therapy with [Ms Y].
…
217.I accept that if the mother was required to remain in Australia her mental health is likely to deteriorate and her ability to care for the child will likewise deteriorate. There were essentially two sub issues. The first was whether the mother had a mental illness. Initially the father was at best sceptical in this regard, however, the expert evidence confirmed that it existed. The second was how it could be treated. [Mr V] said:-
Major depressive Disorder is a very common psychological illness, and has a good response to treatment in most cases when treated with evidence-based therapy. At present it is unclear as to whether [the mother's] treatment with [Ms Y], is partially, or even largely evidence based. I can say for certain that hypnotherapy (which [the mother advised comprises some of the sessions) does not have current evidence base in treating depression. Of course there are psychological factors which also can serve to assist in the resolution of depressive disorders including social connectedness and gainful employment.
218.As I said earlier the mother is treated by [Ms Y] and has been under her care for some years. [Ms Y] has been treating her with hypnotherapy, cognitive behavioural therapy and assistance with crying. The cognitive behavioural therapy was one of the recommendations by [Mr V]. It is not unexpected that the mother has not undergone any other therapies given the proximity of [Mr V's] report to the commencement of the hearing.
…
270.The mother gave evidence about controlled crying, although said at times that she has difficulty containing this to times when the child is not present. I accept that the mother finds it difficult to laugh and has no genuine contentment or joy in life. I am satisfied that if the mother is not permitted to relocate to [Europe] her health is likely to deteriorate and her financial circumstances and contact with her family and friends in [Europe] will remain impoverished.
271.I am satisfied that the mother is and has been the primary carer of the child since the child’s birth. The father has been and continues to be significantly involved in the child’s life.
272.The mother has a mental illness which she is endeavouring to treat in Australia. The father was and perhaps still is sceptical about the mother’s mental health, although counsel for the father conceded the illness during the course of the trial. I am satisfied that the mother’s mental health is as I discussed earlier and that it has a profound impact upon her, particularly in her circumstances of living in Australia.[4]
[4] Footnotes omitted.
From the affidavit, it is clear that the mother has invested more than money in terms of the return to Europe. I note that which she has set out in paragraphs 73 through to 76 in her primary affidavit and that is consistent with the determination made by me on 23 September 2016.
The mother has been this child’s primary carer, and there is a very strong relationship between the child and the father. I have weighed those aspects, in the particular circumstances of these parties and in terms of the mother having the respite, such as it is, in Europe.
To bring the mother back to set up a household pending an outcome of the appeal would, in all of the circumstances of this case, be particularly cruel to her and the child.
The father’s appeal will not be rendered nugatory if the stay is not granted.
Senior counsel for the father conceded that if no stay is granted and the child relocates to Europe and the appeal is upheld, the child can be returned to Australia and if necessary the mother compelled to facilitate or permit the return. To that end he submitted an order be made to ensure that it was the case. I have made that interim order, without otherwise derogating from the final orders.
Given the present circumstances of this child and her parents and having re-read my reasons and orders, considered and evaluated the evidence of the parties and having considered the submissions; I am also satisfied that on balance it is in the child’s best interests to relocate to Europe pending the outcome of the appeal.
Consequently, I decline to otherwise grant the stay and I will so order.
I certify that the preceding thirty nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 24 November 2016.
Associate:
Date: 24 November 2016
0