Nicholson and Shaftesbury

[2013] FCCA 867

FEDERAL CIRCUIT COURT OF AUSTRALIA

NICHOLSON & SHAFTESBURY [2013] FCCA 867

Catchwords:
FAMILY LAW – Application for stay pending appeal – interim parenting orders – general principles considered – stay refused.

Legislation:  

Family Law Act 1975 (Cth), ss.67Z, 117

Aldridge v Keaton (Stay Appeal) (2009) FamCAFC 106

Applicant: MR NICHOLSON

Respondent: MS SHAFTESBURY

File Number: MLC 10674 of 2012

Judgment of: Judge Hartnett

Hearing date: 28 June 2013

Delivered at: Melbourne

Delivered on: 28 June 2013

REPRESENTATION

Counsel for the Applicant: Mr Eidelson

Solicitors for the Applicant: Bowlen Dunstan & Associates

The Respondent: In person

THE COURT ORDERS THAT:

1. The Stay Application filed by the mother on 5 April 2013 is dismissed.

2. The mother pay the costs of the father of this Application fixed in the sum of $2,500. There be a stay on the payment of such sum until receipt by the mother of her share of the net proceeds of sale of the former matrimonial home situate at Property S in the State of Victoria. Such payment (in the sum of $2,500) to be paid to the solicitors for the father before any payment out to the mother of her entitlement to 65 per cent of the net proceeds of sale of the said former matrimonial home.

IT IS NOTED that publication of this judgment under the pseudonym Nicholson & Shaftesbury is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 10674 of 2012

MR NICHOLSON

Applicant

And

MS SHAFTESBURY

Respondent

REASONS FOR JUDGMENT

1. The mother seeks, in Application filed 5 April 2013, as follows:-

   “That there be a stay of Order 2 of Orders dated 19 March 2013 in so far as “The substantial attendance of the maternal grandmother and/or the mother shall cease as and from 8 April 2013” pending the outcome of the Appeal filed 5 April 2013.”

2. In support of that Application, the mother relies upon an Affidavit filed by her on 5 April 2013, sworn 4 April 2013. Ex tempore reasons are now delivered.

3. This stay application was listed for hearing at an earlier date in time but on that date, the parties determined to firstly proceed with competing applications in a case which produced the most recent orders as between them, and made by the Court, which were made on 31 May 2013.  At the conclusion of those proceedings, counsel for the mother indicated that he still wished to proceed with the Stay Application of the mother filed on 5 April 2013.  Accordingly, the matter was adjourned to this date for hearing. 

4. The father opposes the stay application. I note that the Orders, which were made by the Court on 31 May 2013 which discharged the earlier Orders made 19 March 2013 as and from 30 June 2013, provided for the child, X born (omitted) 2010 (‘X’) to spend time with his father in gradually increasing periods of time and over a number of days in each fortnightly cycle.  Those orders were made on the basis of evidence then before the Court which supported the making of that increase in time spent with between the father and X. 

5. Essentially, what the mother seeks by this stay application is the continued operation of Orders made 8 February 2013 which provided for time spent with between X and the father as set out in Order 5 therein which was as follows:-

   “The child spend time with the father as follows:

   (a)     in week one commencing Monday 11 February 2013, from 10.00am to 12noon each Monday, Saturday and Sunday;  and

   (b) in week two commencing Tuesday 19 February 2013, each Tuesday from 5.00pm to 7.00 pm and each Friday from 10.00am to 12noon.”

6. Order 7 of those same Orders provided as follows:-

   “All such time spent with between the Father and child or between the Father accompanied by the paternal grandparents and the child shall occur with the Mother being in substantial attendance but not so as to interfere with the time spent occurring, save as otherwise requested by the Father.”

7. The Orders which were made on 31 May 2013 provided that that time spent with commencing 1 July 2013 (and until X reached three years of age) be as follows:-

   “1 (b)(i)     each alternate Monday from 10.00am to 3.00pm commencing 1 July 2013;

   (ii)    each alternate Saturday and Sunday from 10.00am to 3.00pm commencing 6 July 2013;

   (iii)   each alternate Tuesday from 5.00pm to 7.00pm commencing 8 July 2013; and

   (iv)   each alternate Friday from 10.00am to 3.00pm commencing 12 July 2013.”

8. The Orders made on 31 May 2013, commencing in operation on 1 July 2013, make no provision for the mother and/or her mother to be in substantial attendance during the time spent with between the father and X.

9. The mother appeared as a litigant in person in these proceedings and submitted that in the best interests of X the substantial attendance order should continue to operate.  She referred to that order as a supervision order and it was clear from her submissions, and her affidavit material, that she considered the Orders made on 19 March 2013 to provide for supervision of the time spent with between the father and X.  Indeed, she swore in her Affidavit sworn 4 April 2013 in paragraphs 12 to 16 as follows:-

   “12.I do not consider it safe or in X’s best interest for the husband to be spending unsupervised time with X until he is properly diagnosed and treated.

   13.Further I consider that it would be most detrimental to X’s wellbeing.

   14.I believe Orders made on 19 March 2013 in relation to X spending unsupervised time with the husband are premature and could lead to further mental health issues.  If so this is certainly not in his best interest.

   15.Given that unsupervised time with the husband is scheduled to commence on 8 April 2013 pursuant to orders dated 19 March 2013 the matter is urgent and must be urgently listed.

   16.As a consequence of my very serious concerns about X spending unsupervised time with the husband I have filed an appeal application this day.”

10. I pause here to note that when the matter was listed with time abridged, the parties desired to first proceed with an application in a case as to what time spent with between X and his father should at that time be ordered. The evidence then available to the Court and which was not previously was in the form of an Affidavit from Dr R, Child and Adolescent Psychiatrist sworn 24 May 2013, who had interviewed the mother, the father and observed X with his father, and a s.67Z of the Family Law Act 1975 (Cth) report from Ms M, Child Protection Practitioner with the Department of Human Services (‘the Department’) dated 29 May 2013. Those reports were subsequent to an earlier report of Dr J, Developmental and Behavioural Paediatrician, dated 13 March 2013 and which had been before the Court prior to 31 May 2013.

11. The mother had deposed, in support of her application for a stay, that X suffered from severe separation anxiety and development delays and that the time spent with his father had led to a deterioration in his condition.  She referred to an agreement between the parties wherein X would attend upon see a child psychiatrist for an assessment of his mental health issues. She noted, at that time and in paragraph 9 of her Affidavit sworn 4 April 2013, that Dr R (the appointed child psychiatrist) had not completed his assessment of X and, hence, had not recommended treatment for him.

The Evidence

1. The mother, this day, relied on the Affidavit that has subsequently been filed by her previous lawyers and sworn by Dr R on 24 May 2013.  Likewise, there was before the Court today Dr J’s report of 13 March 2013, and Ms M’s report of 29 May 2013. The Court also, this day, considered a report which the mother wished to place before it and which is annexed to an Affidavit sworn by the mother on 26 June 2013 in support of her further Application in a Case, filed 26 June 2013, for a stay of Orders 1 and 2 of the Orders made on 31 May 2013, pending the outcome of the Appeal filed 26 June 2013.  I am not here dealing with that stay application, which is to be dealt with hereafter.  However, the Court did consider the (omitted) Speech Pathology report of Ms B dated 21 June 2013, as the mother wished same to be before the Court, and there was no objection to that by counsel for the father.  That report indicated that X had attended speech pathology sessions on 15 February 2013 and 6 March 2013, where he was able to separate from his mother and join in with the planned language activities.  He did not thereafter attend until 21 June 2013 and on that occasion, he would not leave his mother’s side throughout the session, and for the majority of the session in the room, he screamed and did not participate in any of the play activities.

2. X was initially referred to Dr R by Dr J, in a letter dated 18 February 2013.  Dr J had seen both the mother and father who, in his presence, displayed considerable hostility towards one another and made various allegations about one another.  The father was angry that the mother was interfering with his time spent with X at (omitted) in (omitted), scheduled for two hours, three times each week.  The father indicated that the mother would not leave X alone, was constantly following him around; and would pick him up and cuddle him whenever he became distressed.  The father stated to Dr J that the mother would not allow him to engage with his son on his own.  For her part, Dr J stated that the mother did not really want X to have a relationship with his father because she felt the father was a bad influence.  She did not want X to have contact with the paternal grandfather because she did not trust him with X.  She felt X had been traumatised by the conflict in the home prior to the parental separation.  In his letter of referral to Dr R, Dr J noted that X’s level of agitation and distress in being more than an arm’s length away from his mother was not normal, and was indicative of a highly anxious and insecure attachment disorder.  He noted X also had some development delays which compounded that disorder.  Dr J said, in his report of 13 March 2013, on page 2 thereof as follows:-

   “In my opinion, the Family Court order which specifies three times per week contact with the father for 2 hours each time, in the presence of the mother initially, is quite reasonable, and that if we expose X to gradual separations and increased these progressively he is more likely to cope.

   I encouraged Ms Shaftesbury to try to cooperate with the current access arrangements by handing X over to his father, sitting back in the corner and avoiding eye contact, staying calm, not following X around, and only hugging X briefly if he keeps coming back to her.  I advised that she should allow the father to come over and take X without interference and to encourage X to go with his dad.  Ms Shaftesbury has found this very difficult, is quite enmeshed with X, can’t bear to hear him crying, and her distress further compounds her son’s emotional distress in my opinion.

   …

   I believe gradual and progressive separations around contact should continue while we look at engaging X and Ms Shaftesbury in counselling through child psychiatrist Dr R to address X’s anxious attachment.  Despite the allegations made by both parties against each other, I am not aware of any indisputable evidence that would suggest contact with one or either parent should not be allowed.”

3. Dr J did not observe X in the company of his father.  That task was undertaken by Dr R and, further, by Ms M, both of whom have provided reports to the Court.  Dr R confirms that X presents with a high level of obvious and severe emotional and behavioural disturbance in interviews.  He detailed in his report the history as provided by each of the mother and father concerning their own relationship, including the mother’s claim that she and X had been traumatised by violence experienced from her ex-husband.  In terms of those allegations of violence made by the mother, the father denied having been violent or frightening to X or the mother.  Those allegations and counter-allegations and denials will be a matter for trial. 

4. Dr R observed X with his father, and on page 8 of his report he said the following:-

   “I left the room and returned with Ms Shaftesbury with X in her arms.  Mr Nicholson had brought some of X’s toys.  X cried at the changeover with leaving mother to go to his father.  I orchestrated the changeover in a structured way saying on the count of 3 Ms Shaftesbury was to pass X to father and then walked out the door.  This occurred.  X cried for several minutes at the separation.  Mr Nicholson tried to settle him using the toys, then holding him in his arms and then doing a fairly vigorous physical dance with X that did lead to him settling.  X then gradually began to get more involved in the play with the toys and his father for instance, finding some cups and pretending that he and his father were having a drink.  After 10 minutes or so he was even more settled, and at this point showed good non-verbal communication and even began using a number of single words or brief phrases with his father.  The interactions with his father were positive.  He went on to display quite complex play for a boy of his age for instance constructing a brief story with 2 plastic toy giraffes and using the doll’s house in an appropriate manner.  At one point he played passing a ball back and forward with his father and there was very positive affect.  There was no overt fear or anxiety in the interview.”

   And later at page 9 of his report:-

   “Mr Nicholson appeared skilful and practiced with X including in the initial moments when he was unsettled and crying.  He played appropriately with X and seemed to anticipate his wishes and wants.  There seemed an obvious relationship between X and his father. Introducing minor stress into the situation throughout the separation experiment and the need to clean up at the end appeared to be managed without difficulty.”

5. Dr R said thereafter in his report that in his opinion, X was a two and a half year old boy who presented with severe mental health difficulties.  He noted that the mother reported improvement in the difficulties over the last couple of months.  Nevertheless, there remains a high level of emotional disturbance and some delays in development particularly around language.  Dr R noted that this was occurring in the context of a parental separation in August 2012 with a high level of ongoing conflict around X’s care including ongoing Family Court involvement and disputed allegations of family violence.  Dr R noted that X’s presentation was consistent with the diagnosis of post-traumatic stress disorder as this condition is manifested in a toddler.  He noted further that the origins of X’s difficulties are almost certainly related to traumatic experience.  His evidence was that the clinical picture usually occurs with ongoing repeated traumatic experience, not single events.  The mother’s description of domestic violence where she described a fearful response in herself and in X was consistent with the clinical presentation.  He said at page 10 of his report:-

   “That X is suffering a Post-Traumatic Stress Disorder tells us that he has suffered overwhelming stress that has not been relieved in a timely manner.  It tells us also that his parent or parents have not been able to relieve or sooth the experience of stress sufficiently. That the fear response is triggered by males offers some support to a male, probably the father, being the feared or traumatising person.  However the trauma syndrome does not tell us exactly what behaviour occurred and X is of an age where he obviously cannot give a verbal account of the experience.”

6. Dr R noted that his observed interaction of X with his father was positive, both around engagement in play and in the management of X’s distressed state with separation.  He noted that the father appeared practiced and competent which suggested that he had played a more substantial parental role than described by the mother.  He said at page 11 of his report:-

   “While such positive interaction does not exclude child abuse it is reassuring.”

7. Dr R observed that the current handover arrangement which then included the mother and father could be seen as continuing to allow a problematic dynamic to occur, and ran the risk of causing ongoing traumatising experiences for X.  Dr R noted that he orchestrated and structured the separation of X from his mother in his office and it seemed to go better than a handover directly between the parents.  He said at page 12 of his report:-

   “Thinking how to manage handovers, including avoiding the handovers being between mother and father, may be helpful.”

8. Dr R recommended that there was a need for ongoing psychotherapeutic treatment of X that should include both parents. In orders made by the Court and subsequent to 19 March 2013, that recommendation has been adopted.  He also recommended that if there were continuing difficulties with handover, then consideration should be given to using a neutral person to orchestrate handovers or even a professional contact supervisor to manage the handover process.  As to X spending time with his father, he noted that a decision needed to be made on all the evidence available about whether the father represents a current risk of violence to X.  If there was sufficient evidence to suggest ongoing risk of physical violence then contact should be ceased or at least supervised.  If there was not such evidence, his recommendation was, at page 12 of his report, that:-

   “… contact arrangements should be set in place to allow a careful and gradual increase in time including a move to overnight contact in the future.  The general principle should be frequent, short periods with a view toward overnight contact sometime after the 3rd birthday.  It is difficult to give a precise timeline as this would depend on how things progress.”

9. There is not evidence before the Court that the father represents a current risk of violence to X.  The observed interaction between the father and X by Dr R was positive.  Dr J supported ongoing time spent with between the father and child with no involvement of the mother, and Ms M in her report under the heading “Recommendations” said as follows:-

   “…It is my assessment that Mr Nicholson can have unsupervised access with X.  It my assessment that access should not [be] supervise (sic) given the conflict that occurs on such occasions.  It is my assessment that Ms Shaftesbury should be referred to family violence counselling and that X is to continue with the counselling already provided to him.”

10. In her report of 29 May 2013, Ms M also noted the allegations made by the mother of family violence and the denials made by the father with respect to same.  She noted that some of the father’s responses were questionable and did not appear realistic.  She noted a lack of objectivity displayed by the father and said that it had been assessed that X had suffered harm as a result of family violence.  Ms M, however, went on to say that there was not enough evidence to suggest that the father was unable to safely provide care for X.  She noted the information provided to her was historical and did not truly reflect the current situation of both parents’ separated status.  She noted that child protection would not remain involved with the family and recommended unsupervised time spent with visits. 

11. On 17 May 2013 Ms M interviewed the father at his home with X present.  She noted that X was sighted to be interacting quite well with his father.  She said as follows:-

    “X was playing and displayed affection toward Mr Nicholson.  X didn’t appear to be fearful of Mr Nicholson’s interactions.  Mr Nicholson in turn interacted quite well to X and attended to his needs when required throughout the interview.

12. The evidence before the Court was that at separation, X suffered anxiety when separating from his mother. Difficulties occurred when the father spent time with X in a public place, being a play centre, and the mother was in substantial attendance.  On one occasion, the mother called the police only to have them determine that she was the aggressor on the basis of independent evidence obtained by them.  The Court determined that it was not appropriate that episodes of that nature should be repeated, causing distress not only to this family and to X but to the general public and made orders to avoid a repetition of such conduct.

1. The evidence before the Court of a child and adolescent psychiatrist who has observed the interaction of the child with the father is that the interaction is positive and that X is not fearful of his father.  That same observation was made by the only other independent evidence before the Court of the interaction between the child and his father, and that was as contained in the report of Ms M.  Ms M is a child protection practitioner for the Department of Human Services (omitted) Melbourne Investigations and Response Team.

2. On the evidence, there is no current risk to X.  The earlier discharge of a substantial attendance order promoted the best interests of X on the evidence before the Court. It would be detrimental to X to revert back to that requirement. 

Consideration

1. In considering the competing applications before the Court, the Court is engaging in an exercise of discretion.  Since the making of the Orders on 19 March 2013, subsequent orders have been made on the parties’ competing applications and as requested to be determined by them, on 31 May 2013.  The subsequent orders have extended the time spent with between the father and child.  In the intervening period between the making of the earlier orders and this day, there has been evidence supportive of increased time spent with between the child X and his father without any need for a substantial attendance provision.

2. The applicable principles relating to a stay pending appeal application are as set out in Aldridge v Keaton (Stay Appeal) (2009) FamCAFC 106. There, the Full Court of the Family Court of Australia, said at paragraph 17 and 18 the following:

   “17. This is an appeal from a discretionary judgment. There are well established principles on the limits on interference by an appellate court with such a judgment (see House v R (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513 ; (1979) FLC 90-716).

   18. The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Ltd [No (1986) 160 CLR 220  at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; Clemett & Clemett  (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329  at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:

   * the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any "special" or "exceptional" circumstances;

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

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

   * the mere filing of an appeal is insufficient to grant a stay;

   * the bona 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.”

3. The Court was not able to be told by either of the parties when the appeal will be heard.  The orders in relation to which a stay is sought were made in March this year and overtaken by further interim orders made in May this year on the parties’ competing applications.  The evidence before the Court as contained in particular in the expert report of Dr R, in the report of Dr J and in the report of Ms M is relied upon by the Court in its determination that the best interests of X are served by him having time spent with his father in the manner that is currently provided for in the Orders of 31 May 2013.

4. There is no current risk to X on the expert evidence with him having time spent with his father in that manner.  When looking to the bona fides of the mother, counsel for the father tendered in evidence correspondence from the mother’s solicitors dated 12 June 2013 to the solicitors acting for the father.  That correspondence was an open letter and it proposed that by consent the parties agree to X spending unsupervised time with the father in accordance with the orders which were in existence prior to 31 May 2013, that is, the Orders of 19 March 2013. 

5. Counsel for the father submitted that the mother was not bona fides in this stay application, that she had sworn in affidavit material to be gravely concerned about the father having unsupervised time with X.  She nevertheless proposed that exactly that occur by way of a resolution of the proceedings.  Counsel for the father submitted that the mother was not genuine in the expression of her concerns.  The mother responded that she had not provided such instructions, in effect.  I do not propose to make any finding with respect to that matter this day save to say that the open letter sits at odds with the case run by the mother.

6. It is difficult on the evidence, in particular the expert evidence, to determine that X’s best interests are not served by the operation of the existing orders and, at the time, the orders which preceded the existing orders.  Whilst this is ultimately a matter for the Full Court on appeal, some preliminary assessment of the strengths of the appeal is required.  It is difficult to see how the grounds of appeal disclose significant merit. The orders appealed against are interim orders made without a full testing of the evidence.

7. In its discretion, the Court determines no stay of the orders should be granted and the application of the wife should be dismissed. Costs will follow the event. An application for costs was made by counsel for the father. The Court has considered those matters pursuant to s.117 of the Family Law Act 1975 (Cth), required to be considered by it, and determines that a costs order is appropriate.

8. Neither of the parties are in receipt of legal aid.  The father’s gross income is approximately $55,000 per annum.  The mother’s income is her receipt of Centrelink payments in the form of a sole parenting pension together with moneys from the father in the sum of $295 each week which are applied toward payment of the mortgage on the home in which she resides.  The mother received at the end of last year, or early this year, the sum of $30,000. She submitted from the bar table that she has expended the totality of those funds (save for the sum of about $300) in legal costs together with $3,000 in medical bills for X. The mother has been wholly unsuccessful in these proceedings.  Tendered in evidence was a facsimile transmission dated 26 June 2013 from the solicitors acting for the father to the solicitors acting for the mother inviting the mother to withdraw her application returnable this day.  That letter said as follows:-

   “If the Application is withdrawn by close of business this day we will not seek an order for costs.  Otherwise Counsel will be briefed to appear at Friday’s Hearing and if necessary this correspondence shall be produced to the court on the question of costs on an indemnity basis.”

9. The parties’ former matrimonial home is due to be sold with settlement in the coming months.  The parties have resolved their property issues and of the net proceeds of sale of the former matrimonial home, the wife is to receive 65 per cent.  The anticipated net equity is $200,000.  The Court considers that an order for costs should be made against the mother in the circumstances as described herein and that such sum can be paid by the mother at the time she receives her share of the net proceeds of the former matrimonial home.  A quantum of $2,500 is appropriate with reference to the scale of costs as set out in the Federal Circuit Court Rules 2001 (Cth) and the work required to be done in respect of this application. The Court shall so order.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date:  19 July 2013