Pawley and Pawley (No.2)
[2017] FCCA 1100
•26 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PAWLEY & PAWLEY (No.2) | [2017] FCCA 1100 |
| Catchwords: FAMILY LAW – Parenting – relocation – slip rule pursuant to rule 16.05 – stay application dismissed. |
| Legislation: Family Law Rules 2004 (Cth), rule 22.11 |
| Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 Campbell & Spalding [1998] FamCA 66 Federal Commissioner of Taxation v Myer Emporium Ltd (No.1) [1986] HCA 13; [1986] 160 CLR 220 Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [1986] HCA 84; [1986] 161 CLR 681 |
| Applicant: | MS PAWLEY |
| Respondent: | MR PAWLEY |
| File Number: | NCC 363 of 2017 |
| Judgment of: | Judge Middleton |
| Hearing date: | 16 May 2017 |
| Date of Last Submission: | 16 May 2017 |
| Delivered at: | Newcastle |
| Delivered on: | 26 May 2017 |
REPRESENTATION
| Counsel for the Applicant: | N/A |
| Solicitors for the Applicant: | Mr Brogan, Bale Boshev Lawyer |
| Counsel for the Respondent: | N/A |
| Solicitors for the Respondent: | Mr White, Powe & White Family Lawyers |
THE COURT ORDERS THAT:
The application in a case filed 10 May 2017 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Pawley & Pawley (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 363 of 2017
| MS PAWLEY |
Applicant
And
| MR PAWLEY |
Respondent
REASONS FOR JUDGMENT
By application in a case filed on 10 May 2017, Ms Pawley, the mother, sought the following orders:
(i)All requirements under the rules be and are hereby abridged to enable this application to be listed and heard before Judge Middleton as a matter of priority or otherwise on an urgent basis;
(ii)The order made on 4 May 2017 by Judge Middleton be stayed;
(iii)Costs.
The affidavit of the mother filed 10 May 2017 in support of her application indicated that the stay was sought pending an appeal. The only order made on 4 May 2017 by me was made pursuant to Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001.
Background
Proceedings were commenced by Mr Pawley, the father, on 4 February 2017. The parties commenced cohabitation in late 2009, married on (omitted) 2013, and separated on a final basis in January or February 2016.
The proceedings relate to two very young children, X, born (omitted) 2014, and Y, born (omitted) 2016.
The father had been spending one day per week with X from the date of separation, but had spent no time with Y but for brief contact at changeovers with X.
The parties attended a mediation on 18 January 2017, and failed to reach an agreement. The affidavit of the father filed 14 February 2017 informed me that he was concerned that the mother may be proposing to relocate to a property at (omitted), some five and a half hours driving distance away from the (omitted) where the parties had otherwise resided.
The mother in her affidavit filed 20 March 2017, the day before the interim hearing, disclosed that:
“From mid-2016 until early 2017 I spent short periods of time with the children at “Mr M’s” residence, being one to three nights at a time, and, likewise, he has spent a few short periods of time at my residence with the children.”
It is “Mr M’s” residence that is at (omitted). The mother further disclosed in her affidavit:
“Since January 2017 until the present time, I have been travelling with the children to (omitted) and staying with “Mr M” for about five nights per week.”
The matter was heard on an interim basis on 21 March 2017, and on that date, the “significant issue” of whether the mother should be permitted to relocate was heard.
I provided ex tempore reasons on that day, and adjourned the matter. I was then called upon to settle my reasons as the father appealed the orders I made on 21 March 2017.
At that time I realised that my intention was not reflected in the orders. Whilst I had made an order for the father to spend time with the children on two separate days rather than as the mother requested, two days in a row, I failed to make an order for the children to remain in the (omitted) on the days of and in between them spending time with the father.
I relisted the matter on short notice and notified the parties of my slip, and inquired as to whether the mother would consent to me varying the order consistent with my intention, and subsequently made the order against opposition of the mother.
The order sought to be appealed is:
“The mother is restrained from relocating the children’s residence from the (omitted) region between Wednesday and Saturday.”
The (omitted) region is the area in which the children had previously resided. By notice of appeal filed 11 May 2017, the mother sought orders which included that the order made on 4 May 2017 be set aside.
The grounds of appeal were as follows:
1)that the learned trial Judge erred at law in making parenting orders on 4 May 2017, when at such time the learned trial Judge was functus officio with respect to interim parenting applications before the Court;
2)that the learned trial Judge erred at law in making orders on 4 May 2017, as he had no power to do so at that time;
3)that the learned trial Judge erred at law in making interim parenting orders on 4 May 2017, pursuant to rule 16.01 of the Federal Circuit Court Rules where such orders were made not upon the application of a party in the proceedings;
4)that the learned trial Judge erred at law in failing or refusing to provide the appellant with the opportunity to adduce evidence in respect of the proposed parenting orders ultimately made on 4 May 2017;
5)that the learned trial Judge erred at law in making parenting orders on 4 May 2017, as to do so what [sic] contrary to affording the appellant procedural fairness and/or contrary to the principles of natural justice;
6)that the learned trial Judge erred at law in making a “coercive” order with respect to the relocation of the mother and/or the children;
7)that the learned trial Judge failed to consider and thus erred at law, the practicability or otherwise of parenting orders ultimately made on 4 May 2017;
8)the learned trial Judge failed to consider, and thus erred at law, the effect of parenting orders made on 4 May 2017 upon the welfare of the children [sic];
9)that these grounds of appeal are drafted in the absence of the reasons of the learned trial judge, and once those reasons are received, the appellant may seek leave to amend those grounds.
The respondent did not file a response to the application in a case. He was represented by counsel on 16 May 2017. On behalf of the father, counsel sought an order that the mother’s application in a case be dismissed.
By consent counsel for the father admitted into evidence the fact that the maternal grandmother owned a dwelling in the (omitted), that the parties had lived at for some considerable time and until separation. The mother continued to reside there post-separation, sharing her time between there and “Mr M’s”, and the property consisted of six dwellings, one house with six bedrooms, and five other dwellings.
It should be noted that the (omitted) and the (omitted) region are interchangeable, that is, they are within the same geographic location.
The law
By operation of rule 1.05(2) of the Federal Circuit Court Rules the relevant rule is rule 22.11 of the Family Law Rules 2004 (Cth). Rule 22.11 provides:
“(1) The filing of a notice of appeal does not stay the operation or enforcement of the order appealed from unless otherwise provided by a legislative provision,
(2) if an appeal has been started, or a party has applied for leave to appeal against an order, any party may apply for an order staying the operation or enforcement of all or part of the order to which the appeal or application relates;
(3) an application for a stay must be filed in the registry in which the order under appeal was made and be heard by the Judge of the Family Court, Judge of the Federal Circuit Court or Magistrate who made the order under appeal.”
The authorities stress the discretionary nature of stay applications (Federal Commissioner of Taxation & Myer Emporium Ltd (No 1)[1]; Alexander v Cambridge Credit Corporation[2]; Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd[3]; Clemett & Clemett[4]; JRN & KEN v IEG & BLG[5].
[1] [1986] HCA 13; [1986] 160 CLR 220.
[2] (1985) 2 NSWLR 685.
[3] [1986] HCA 84; [1986] 161 CLR 681
[4] (1981) FLC 91-013
[5] (1998) 72 ALJR 1329
The Full Court in Aldridge & Keaton (Stay Appeal)[6] set out the relevant principles at paragraph 18 as follows:
[6] [2009] FamCAFC 106
“(1) 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;
(2) a person who has obtained a judgment is entitled to the benefit of the judgment;
(3) a person who has obtained a judgment is entitled to presume the judgment is correct;
(4) the mere filing on an appeal is insufficient to grant a stay;
(5) the bona fides of the applicant;
(6) 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;
(7) 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;
(8) some preliminary assessment of the strength of the proposed appeal - whether the appellant has an arguable case;
(9) the desirability of limiting the frequency of any change in a child’s living arrangements;
(10) 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
(11) the best interests of the child the subject of the proceedings are a significant consideration.
Brief Summary of the Submissions
On behalf of the applicant, Mr White submitted that I could be satisfied of the bona fides of the applicant, that the applicant had a strong appeal, that rule 16.01 did not apply because the father did not seek the application of the rule, and that the rule did not apply. Furthermore, the applicant believed I had relied upon rule 16.01, not rule 16.05, that the applicant had an arguable case that the appeal would be nugatory because the Full Court would not re-determine the case, that there were existing satisfactory arrangements because the primary considerations of Section 60CC are met.
On behalf of the respondent, Mr Weightman submitted that the applicant had not discharged the onus, and that I need to look at the substance of what I was doing rather than the specific rule that I was doing it pursuant to; that even if I referred to rule 16.01, the applicant conceded that I was relying upon rule 16.05(2)(e); that the issue of an injunction preventing the mother from unilaterally relocating was fairly and squarely alive on 21 March 2017; that I have the power to make a coercive order; that the appeal would not be ruled nugatory, and the (omitted) is where the children have lived all their lives until late January/early February, and, finally; that the amount of travel the children are doing is not a satisfactory arrangement.
Discussion
Nothing turns on this application in relation to the first four principles as outlined in Aldridge & Keaton.[7]
[7] [2009] FamCAFC 106.
The bona fides of the applicant
The application was filed on 10 May 2017, only six days after the order was made on 4 May 2017. The appeal was lodged on 11 May 2017. The effect of the orders sought in the appeal is consistent with the applicant’s position in the substantive proceedings, that is, that she be permitted to unilaterally relocate to “(omitted)” at (omitted), some five and a half hours drive away from where the children had previously resided. I am satisfied of the applicant’s bona fides in those circumstances.
Weight of the risk that an appeal may be rendered nugatory
Submissions by the applicant on this point were that the appeal would be nugatory because the Full Court will not re-determine the matter. The order appealed is my order of 4 May 2017. If the appeal is granted, the order is dismissed. Whether I stay the order or not will have no effect on the merits of the appeal. Either I fell into error, amending my order of 21 March 2017 under rule 16.05(2)(e), or I did not. I cannot see how the failure to grant a stay will render the appeal nugatory.
Preliminary assessment of the strength of the proposed appeal
Functus officio
First ground of the appeal is that I was functus officio at the time I made the order of 4 May 2017. I was not reopening the case, nor was I re-determining the case. I made it very clear from the outset on 4 May 2017 that I was applying rule 16.05 to vary the order I made on 21 March 2017 because the order did not reflect the intention of the Court. As their Honours said in Tobey & Rezek[8]:
“Courts have an inherent or implied jurisdiction to amend judgments which do not correctly state what was actually decided and intended.”
[8] [2017] FamCAFC 84, 118; Elyard Corporation Proprietary Limited & DDB Needham Sydney Proprietary Limited (1995) 133 ALR 2006; DJL v The Central Authority (2000) 201 CLR 226.
In DJL v The Central Authority, the High Court held that:
“An order… may be made in the action for the correction of the records of the Court to make certain that they truly represented what the Court had pronounced or intended to pronounce.”
Having regard to the authorities and the rule relied upon, I do not consider this ground of appeal is likely to succeed.
No Power
It follows that ground 2 is also not likely to succeed. If it is suggested that I had no power to make a coercive order, in keeping with ground 6, then I refer to D & SV[9] where the Full Court said:
“We conclude that there is power under section 114(3) of the Act to enjoin a parent from relocating or to relocate, provided that injunction is no more necessary to secure the best interests of the child.”
[9] [2003] FamCA 280.
Furthermore in Sampson & Hartnett(No.10)[10] the Full Court at paragraph 43 said:
“As to the court’s power to make coercive orders and the propriety of making such orders, section 65D provides:
(1) In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and section 65DAB (parenting plans) and this division, make such parenting orders as it thinks proper. (emphasis added)”
[10] [2007] FamCA 1365.
On 21 March 2017, I heard the interim hearing regarding the significant issue of the mother’s unilateral relocation some short time prior to the hearing. I referred to relevant authority: Campbell & Spalding[11] and Morgan & Miles.[12]
[11] [1998] FamCA 66.
[12] (2007) FLC 93-343.
The passages I referred to were in relation to how relocation applications should not be determined in an abridged interim hearing except in case of emergency. I considered the very young age of the children and of course the legislative intent in favour of substantial involvement of both parties.
The applicant argues that the children are settled in the new area at (omitted) and that I could not order the mother to relocate. The father argues that the mother had been residing between the two areas and that she should be prevented from relocating. The mother had moved, part-time and only recently, prior to 21 March 2017.
In all of those circumstances, I made the coercive order as I considered it necessary to secure the best interests of the children.
In those circumstances, I am of the view that ground 2 has limited merit.
Rule 16.01
Ground 3 has no merit. I did not make an order pursuant to rule 16.01.
Adduce further evidence
Ground 4 has limited merit. I was not re-opening the case. I was varying an order so as to correctly reflect the intention of the Court. In those circumstances, it would not be proper for me to allow further evidence to affect my intention.
Procedural fairness
In relation to ground 5, I relisted the matter on 4 May 2017 so as to afford the applicant and respondent procedural fairness. In circumstances where I was aware that my order of 21 March 2017 did not reflect my intention, I wanted the parties to be made aware at the time I made the order varying the order of 21 March 2017, that I was doing so.
However, it was not appropriate, in my view, for me to allow further evidence to be adduced as I was varying the orders in accordance with my intentions, based on the evidence I heard on 21 March 2017. I am of the view that had I allowed further evidence to be adduced in circumstances where I was applying rule 16.05, I would be in error. I do not consider this ground has merit.
Coercive order
Ground 6 is dealt with in my reasons above and for those reasons I am not satisfied that there is merit in this ground.
Practicability of parenting order made 4 May 2017
Ground 7 is that I erred at law because I failed to consider the practicability or otherwise of the parenting order I made on 4 May 2017. I varied the order based upon the evidence I had before me on 21 March 2017.
That evidence was that the mother was travelling between “(omitted)” and her mother’s home from mid-2016 until early 2017 and spending one to three nights per week at a time on “(omitted)”. Her more recent stays of about five nights per week on “(omitted)” occurred from late January 2017.
Based on that evidence, I consider it practical for the children to stay in the (omitted) region between Wednesday and Saturday inclusive because they had been staying in the (omitted) region for more than four nights prior to the mother’s unilateral relocation.
There was no evidence before me on 21 March 2017 that satisfied me that the mother and children did not have suitable accommodation available to them in the (omitted) region.
In those circumstances, I am not satisfied that there is merit in this ground of appeal.
Welfare of the children
It was the welfare of the children that I had at the forefront of my mind when I made the order of 4 May 2017. I did not want these very young children living some five hours away from their father and thereby preventing his substantial involvement in their lives, nor did I consider it in their best interests to be travelling the five hours in a car more than necessary.
Indeed, a literal reading of my orders would see the children travelling the distance up and back for the children to spend time with their father on Wednesday, and again up and back for the children to spend time with their father on Saturday. That was something that I was trying to prevent by virtue of my order.
Mr White, on behalf of the applicant, stated that the mother was adopting a literal reading of my orders made on 21 March 2017. I wanted the children settled in their pre-existing circumstances during and between times they were spending with the father as I considered that to be in their best interests on an interim basis.
For those reasons, I do not consider this ground 8 of appeal to have merit.
I do not need to comment on ground 9.
While I acknowledge that there is always an arguable case on appeal, my preliminary assessment is that the appeal is not strong.
Limiting the frequency of any change in the child’s living arrangements
On any view of the evidence, these children have been living between two residences up until late January 2017. They live predominantly in the (omitted) region and shortly before the hearing on 21 March 2017 they may have been living predominantly on “(omitted)” at (omitted). I say may because the mother’s evidence was that she had been:
“Staying with “Mr M” for about five nights per week.”
That is equivocal, in my view. A literal adoption of my order of 21 March 2017 allows the mother to travel frequently, thereby changing the children’s living arrangements often.
My order of 4 May 2017, the intended order, prevents that from happening. If I grant the stay, there will be very frequent changes in the children’s living arrangements. If I do not grant the stay, the frequency will be limited.
Time to hear an appeal and satisfactory arrangements
The applicant has sought an order that the appeal be expedited.
Both Mr White and Mr Weightman could not offer me any assistance as to what that meant with regards to when the appeal might be heard. I personally also do not know.
The applicant argued that there were satisfactory arrangements in place because the children will still see their father two days a week and because the primary considerations have been met.
The respondent argues that the arrangements are not satisfactory as the children have been removed from the area they have lived all their lives and they will be travelling too much if I grant the stay.
At the time I heard the interim hearing, on 21 March 2017, I was not satisfied that there were satisfactory arrangements in place. I was concerned that the children had been removed from the property they had lived all their lives, that the distance between the children and their father would likely impact on their ability to have a meaningful relationship and they were living with a person, Mr M”, who the father knew very little, if anything, about in a property that very little was known about.
The mother’s affidavit of 10 May 2017 does not assist me in relation to any of those matters.
In those circumstances, I am not satisfied that there are satisfactory arrangements in place if I grant the stay.
Best interests of the children
In Clemett & Clemett[13] Nygh J said:
“In determining whether a stay should be granted, the welfare of the child is the paramount consideration.”
[13] (1981) FLC 91-013,76-175.
In Aldridge & Keaton[14] the Full Court said:
[14] [2009] FamCAFC 106.
“The best interests of the child are a significant consideration.”
In K & B[15] the Full Court dismissed a stay appeal. 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 the 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.”
[15] [2006] FamCA 848.
The mother’s affidavit filed 10 May 2017 relevantly provides evidence that since the making of the order on 4 May 2017, she:
a)continues to reside with “Mr M” at (omitted);
b)travelled to and from the (omitted) to effect the children spending time with their father;
c)continues to attend playgroup at (omitted);
d)intends on enrolling X in preschool in mid-2017; and
e)has made inquiries with (omitted) Public School for the enrolment of X if she is permitted to remain living at (omitted).
That evidence reinforces the concerns I had with regard to the children’s best interests not being met by the unilateral relocation of the mother and adds to those concerns in circumstances where the mother is seeking to cement the children in (omitted) prior to a final determination being made as to whether a relocation to (omitted) is in the children’s best interests.
I am satisfied that if I grant the stay, the children’s best interests may not be met and until I can make a final determination, their best interests will be met by remaining in the (omitted) region pursuant to the order I made on 4 May 2017.
For those reasons, I will not grant a stay.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Middleton
Date: 26 May 2017
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