Pedrana and Cox (No. 2)
[2012] FamCA 756
•5 September 2012
FAMILY COURT OF AUSTRALIA
| PEDRANA & COX (NO. 2) | [2012] FamCA 756 |
MOTHER’S APPLICATION IN A CASE (STAY APPLICATION)
FILED 31 AUGUST 2012
| FAMILY LAW – CHILDREN – Where final parenting orders made that the child live with the Father – Application for a stay – Application dismissed | ||
| APPLICANT: | Mr P Pedrana | |
| RESPONDENT: | Ms Cox |
| INDEPENDENT CHILDREN’S LAWYER: | Leisa Toomey, Solicitor |
| FILE NUMBER: | BRC | 7647 | of | 2007 |
| DATE DELIVERED: | 5 September 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Bell J |
| HEARING DATE: | 3 September 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Carmody |
| SOLICITOR FOR THE APPLICANT: | Everingham Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Jordan |
| SOLICITOR FOR THE RESPONDENT: | DA Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Farr |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Schultz Toomey O’Brien Lawyers |
Orders
IT IS ORDERED THAT:
The Mother’s Application in a Case filed 31 August 2012 for a stay of the Orders of this Honourable Court made 30 August 2012, pending determination of an appeal, be dismissed.
IT IS FURTHER ORDERED THAT:
The execution of Order (1) of the Order of this Honourable Court made
3 September 2012, be extended until 12 noon on 6 September 2012, to enable the Independent Children’s Lawyer to explain to the child, C PEDRANA-COX born … May 2005, the Orders of this Honourable Court made on 30 August 2012.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pedrana & Cox (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: BRC7647/2007
| Mr P Pedrana |
Applicant
And
| Ms Cox |
Respondent
REASONS FOR JUDGMENT
The Mother’s application is an application for stay of the Orders made by the Honourable Justice Bell on 30 August 2012.
C Pedrana-Cox (“the child”) born in May 2005 has lived with the Mother since separation in 2006. The Father has for the most part, spent only supervised time with the child since this time due to numerous concerns the Mother has had about the safety of the child in the Father’s care (see the reasons for judgment of the Honourable Justice Bell dated 30 August 2012 for the history of the matter).
The parties were involved in contested proceedings before Justice Bell on 25 July 2011 to 28 July 2011, 28 November 2011 to 30 November 2011 and 4 June 2012 to 7 June 2012.
The Orders made on 30 August 2012 provide that the child live with the Father. The Orders further provide that the Mother is to not have face to face contact with the child for a period of two months, and thereafter the Mother is to spend supervised time with the child each alternate Saturday and Sunday from
10.00 am until 4.00 pm each day for three months, followed by unsupervised time with the child each alternate weekend between the hours of 9.00 am Saturday until 5.00 pm on Sunday.
On 30 August 2012, the Mother sought that the Orders be suspended so that she may file an application for a stay. The Orders were suspended until noon on Monday 3 September 2012. The child was ordered to have contact with his Father for this period. The Mother filed an application in a case, seeking a stay, on 31 August 2012. On this date, the Mother also filed a Notice of Appeal.
The Mother further filed an Undertaking on 3 September 2012 that she will file an application in an appeal within seven days seeking to expedite the hearing of the appeal and that she will comply with section 121 of the Family Law Act 1975 (Cth).
Rule 22.11 of the Family Law Rules 2004 (Cth) clearly provides that the filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from, unless this is otherwise provided for by legislative provision. The rule states that if an appeal has been started 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. This reflects the principle that a successful litigant should be entitled to the “fruits” of the litigation (see Carlin and Carlin (1977) FLC 90-320 per Watson SJ at 76,696).
The decision to grant a stay is a completely discretionary matter (see In the Marriage of Kelly (1981) FLC 91-007).
In Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106, the Full Court considered an appeal from the refusal of the Chief Federal Magistrate to stay parenting orders. The Full Court (Byrant CJ, Boland and Crisford JJ) said:
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 Limited [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited (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.
The Full Court in Sheldon & Weir (Stay Application) [2011] FamCAFC 5 again stated that these principles, similarly outlined in Trahn & Long (No. 2) [2008] FamCAFC 194 and subsequently cited by the trial Judge, were a correct statement of the relevant principles for the purposes of that appeal.
The onus is on the Mother to establish a proper basis for the stay. However, she does not need to demonstrate any special or exceptional circumstances. Some of the relevant principles are considered below.
Some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case
In Trahn and Long (No 2) (see supra), the Full Court recognised at [38] that the court should conduct:
Some preliminary assessment of the strength of the proposed appeal-whether the appellant has an arguable case.
In Brennan and Shaw (Stay Appeal) [2008] FamCAFC 138, the Full Court recognised the difficulty in requiring judges to effectively consider the merits of their own decisions and stated:
64. On the issue of whether the trial Judge gave adequate weight to the likely prospects of success of the appeal, it is not in doubt, that his Honour accepted the appeal was a bone fide one. We accept that his Honour did not directly canvass to any significant extent the merits of the grounds of appeal, and note that such an exercise is a difficult one for a trial Judge who has diligently and carefully decided a case and made orders which he or she considers to be in the best interests of the child.
The Mother has filed a Notice of Appeal setting out 18 grounds. I have considered particularly the grounds emphasised by the Mother’s counsel in the hearing. These are:
Ground 1:
That the learned Trial Judge erred in that he failed to give any or any adequate reasons for the acceptance by him of the evidence of the Family Report Writer and the weight afforded by him to such evidence in circumstances where he had not seen the child for 18 months.
It appears to me that the evidence of the Report Writer was not contradicted by any of the expert evidence.
Ground 2:
The learned Trial Judge erred in that he placed reliance upon evidence of the mother’s psychiatrist, [Dr N], in circumstances that:
(a)such evidence was 18 months old; and
(b)[Dr N] was not asked whether he continued to hold that view subsequent to the mother’s change of position in relation to the risk proposed to [the child] by the father.
Dr N was the Mother’s witness and was not cross-examined, consequently his evidence came before the court unchallenged save for the evidence of Mr J and Dr K in relation to the issue the cognitive behaviour therapy. These witnesses of course, were cross-examined.
Ground 4:
The learned Trial Judge erred in that:
(a)he found that [Dr K] considered that there were only two possibilities, when there was a third possibility, to explain the mother’s change in position; and
(b)he failed to give adequate reasons as to why he would not accept, in the circumstances of having heard all the evidence in the case, [Dr K’s] third possibility in respect of the mother’s change of position.
In relation to ground 4, notwithstanding that there is evidence that he considered a third possibility, I do not believe that such possibility would in anyway affect the outcome of this trial, notwithstanding it was not referred to specifically.
Ground 5:
The learned Trial Judge erred in finding, without a proper evidentiary basis, that the child is in “obvious enmeshment (with the mother).”
There is evidence upon which I believe that I could come to the conclusion that there was enmeshment and in my view, it was obvious.
Ground 6:
The learned Trial Judge erred in that he failed to have any or any proper regard to the provisions of s60CC(3)(c) [as it then was] in that:
(a) the learned Trial Judge failed to give any or adequate reasons for the finding that the father will encourage the child’s continued relationship with the mother, especially in circumstances where the father proposed that the mother’s time be subject to supervision until [the child] is 18; or that it be supported by her parents until [the child] is 14.
Ground 6 is a ground which in my view the applicant possibly has some merit. I believe however that the appeal would be unlikely to succeed on that ground alone, which I have indicated is the only ground which I believe is arguable. I believe that she may have an arguable case on this, but not one that is specifically persuasive.
There has, in my opinion, been no persuasive attack upon the ability of the Father to encourage the relationship between the Mother and the child, save that Jordan submits that the Father’s insistence upon, as he had originally said, the Mother being supervised until the child was eighteen, and then subsequently to the age of fourteen, the Mother to be supported, and in his first view subsequently accepts that that means supervision, particularly by the paternal grandmother. This is a matter, which whilst not specifically having been set out, is not in my opinion, a matter of such moment that would achieve on appeal, wherein there are so many other matters.
Ground 8:
The learned Trial Judge identified two issues in the case and failed thereafter to consider nor provide any or any adequate reasons as to whether or not the mother was capable of appropriately caring for the child despite her medical issues.
Insofar as ground 8 is concerned; it is quite clear, in my view, there is more than sufficient evidence for me to accept that the Mother’s health is impinging upon the child’s health and I refer only to one matter and that is where the child was requested, I believe by the Mother, to call the ambulance when she suffered her distressing attack at the so-called “Christmas incident”. The child was at that stage four.
Ground 9:
The learned Trial Judge erred in Law and in fact in finding that the fact that the mother’s existence will still be in the child’s mind, represented significant contact between the mother and the child.
In my view, the child has a close relationship with the Mother and that such relationship with the Mother will, on the evidence keep the Mother’s existence in the child’s mind (see further my reasons for judgment dated 30 August 2012 at paragraph 98).
Ground 17:
The learned Trial Judge erred in finding that the mother’s transition to unsupervised time with [the child] would be subject to intervention on behalf of either the father or the Independent Children’s lawyer to extend the time for supervision.
I do not believe that this is a persuasive ground, since in my opinion, as I have said in my reasons for judgment dated 30 August 2012, the “remedy is in the Mother’s hands” and consequently I have considered that, albeit not specifically (see further my reasons for judgment dated 30 August 2012 at paragraphs 103 to 105).
Of the grounds of appeal, I consider only ground 6(4) could have an arguable point. The ground does have merit however it is unlikely that the appeal will be successful on this ground alone. The Mother may have an arguable case but not one that is sufficiently persuasive. Since I have found that there is an arguable case, I will go on to consider the other relevant factors. In this case I particularly consider the time frame in which the appeal can be heard to be of issue. Does the Mother’s arguable case outweigh the fact that the matter may not be heard for another 12 months time?
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
It is relevant to consider if the appeal can be dealt within a reasonable time (Clemett and Clemett (see supra)).
The Mother has stated as of 31 August 2012, the appeal is likely to be set down for hearing in the September 2013 sittings. There may be an ability to obtain a hearing in an earlier sitting if other appeals do not proceed. It is noted that the Mother has filed an undertaking to file an application in the appeal seeking an expedited hearing.
A delay of 12 months is in effect, fatal to the application for a stay. If a stay is granted and the child stays with the Mother for another 12 months, the whole case will need to be revisited.
In weighing up this time frame, the Court may look at whether the child’s existing arrangements prior to making the Order support the granting of a stay.
In Wilson and Wilson (unreported decision of Full Court delivered 10 October 1996), Ellis J with whom the other members of the Court agreed, stated:
I would with respect, at the outset, indicate that I am in complete agreement with the observations of the Full Court in Clemett and Clemett to which the trial Judge referred but, in my view, the trial Judge has misunderstood the reference in that passage to which she referred, the expression “the present circumstances of the child”. The Full Court was there, in my view, referring to the circumstances prior to the making of the order, a stay of which is sought, not to the circumstances after the making of the order when the order has been put into effect.
In Sampson and Hartnett [2007] FamCA 732, the Full Court considered an appeal from a refusal to grant a stay where the children had been ordered to move from Geelong to Sydney. In relation to the consideration of the children’s current circumstances, Coleman J (Thackray and Mushin JJ agreeing) stated:
34. … It is almost axiomatic that in the circumstances of this case, having considered a change with the implications which the trial Judge's ordered [sic] had for the mother, she must have been satisfied that the current arrangements were less than satisfactory. There is no question that such was her Honour's view when one reads her reasons for judgment in the substantive parenting proceedings.
35. There is, I think, however a distinction to be drawn between satisfactory in the sense of less than ideal, which was clearly the situation in this case on the one hand and unsatisfactory in the sense of involving children in the risk of harm or abuse, if the orders of the trial Judge are not implemented.
However, the Court has been left with a horrible dilemma. If the child, as I have found, remains with the Mother, clearly his mental health and his obvious enmeshment with the Mother will, in my view, become worse. However, if in fact he remains with the Father pending any appeal which is to be heard and at whatever time it is to be heard, the relationship with the child is such that I do not believe that the relationship with the Mother will be damaged by his being absent from her, subject of course to the question of contact for a lengthy period of up to 12 months.
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
By the time the appeal takes place and is determined, the child would have spent a significant amount of time away from the Mother pursuant to the Order. It is likely that an appeal will take longer than the two month no contact period currently ordered. If the appeal is successful, the Mother would have already spent that time away from the child. However, the child can still be returned to the Mother’s care upon determination of the appeal. See also paragraphs 25 and 32 of this judgment.
Counsel for the Mother submits that the appeal will be rendered nugatory for the reason that the child will have the Order explained to him and his life will change immeasurably by the Orders, and this “can’t be put back into the bottle” (transcript, page 21, 3 September 2012).
A person who has obtained a judgment is entitled to the benefit of that judgment
The Father is entitled to the benefit of the judgment. The main issue in this matter was the effect that the child remaining with the Mother would have on the relationship of the Father and the child. The risk was that the Mother’s anxiety and emotional distress at the thought of the Father spending unsupervised time with the child would be transmitted to the child by the Mother’s physical response; that the child would most likely be sensitive to this response; and that he would then become anxious himself about spending time with his Father (see judgment of the Honourable Justice Bell dated 30 August 2012, particularly paragraphs 28 to 29). The importance of the judgment was that the child be given a period of time with his Father to develop a meaningful relationship without the Mother’s interference; and that the Mother be given a period away from the child to seek therapy and guidance. This period was necessary for the Mother to consider the reasons of the judgment and gain an insight into her behaviour and the effect that her anxiety is having and will have on the child (see judgment of the Honourable Justice Bell dated 30 August 2012, at paragraphs 105-106). This is supported by the expert evidence.
The person who has obtained a judgment is entitled to presume the judgment is correct
This principle is particularly pertinent in property or financial cases (see Federal Commissioner of Taxation v Myer Emporium Ltd (1986) 160 CLR 220).
The bona fides of the applicant
In Clemett and Clemett (1981) FLC 91-013, Nygh J said at 76,175:
In determining whether a stay should be granted, the welfare of the child is the paramount consideration. It is especially desirable that the frequency of any changes in the custodial arrangements relating to the child should be limited as much as possible. If the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt with within a reasonable time and the present circumstances of the child are satisfactory, it will be appropriate to grant a stay of proceedings for at least a short period.
The Father asserts that the Mother’s application is just another delaying tactic and states in his submissions at [5] that:
The reality of the situation is that the mother will continue in one form or another to delay any orders with which she does not agree. It will not end with this stay application.
The Mother is bona fide at least in her desire to overturn the decision.
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
Both parents will experience hardship irrespective of the decision made.
The balance of convenience may point to the maintaining of the status quo however, it is important to consider the consequences for the child of granting or refusing a stay.
Is it convenient for the child to be subjected to the Mother’s anxiety and emotion leading up to the appeal? It is evident how much trauma the child has been put through already regarding the Mother’s anxiety. While the Mother has stated that she now believes the Father does not pose a risk to the child, it cannot be denied that she still has some anxiety issues, and would likely be affected by an appeal in the same way she is now.
In Friscioni and Friscioni [2009] FamCAFC 43, Boland, O’Ryan and Le Poer Trench JJ stated:
55.In cases where a stay is sought of parenting orders pending an appeal against those orders it has long been recognised that there are other factors that may be relevant. This was recognised by Kirby J in JRN & KEN v IEG & BLG (supra) who said at 1332: “In my opinion, some adaptation of the rules stated in the cases governing stays in this Court must also occur in cases which affect significantly third parties who are not parties before the Court and, in particular, children whose welfare must always be in the mind of a court in making an order affecting their interests”. In other words it is important to consider the “consequences for a child of granting or refusing a stay”: EJK and TSL (No. 2) (supra) per the Full Court (Coleman, May and Boland JJ) and K and B (2006) FLC 93-288 at 32 per the Full Court (Warnick, May and Boland JJ). (My emphasis)
The desirability of limiting the frequency of any change in a child’s living arrangements
The Mother may have an arguable point on the appeal.
If the stay is granted, the child will stay with the Mother, where he resides presently, until the appeal is heard subject to the finding of overt or covert psychological pressure upon the child during such period of the stay.
If in fact the appeal is successful, there would be no change in the child’s living arrangements.
In CSN v JBN (1998) 24 Fam LR 174, the Full Court indicated that it was desirable to avoid frequent changes to the child’s residence unless maintaining the status quo might be harmful to the child (referring to Evatt CJ in Sanders (1976) 26 FLR at 476).
However, the Full Court in K and B (2006) FLC 93-288 noted:
32. The granting or refusal of a stay involves an exercise of discretion by a trial Judge. Whilst such discretion must be exercised judicially, in cases involving children, we accept that from time to time circumstances in existence at the date of the orders, or which occur from the date of orders until the hearing of a stay application, may be very relevant matters to be considered in the exercise of discretion in determining whether or not to grant a stay. The interests of children would not be promoted by an inflexible requirement or presumption in every case to maintain the status quo prior to the making of orders the subject of the stay application, and to ignore unsatisfactory arrangements at the time of the orders, or significant events which have occurred after the making of those orders.
(My emphasis)
If the arrangements that the child is currently living under are unsatisfactory as I have found on more than adequate evidence, then maintaining the status quo may not be promoting the child’s best interests.
The best interests of the child
The best interests of the child in making the original Order were found to be that the child has a period of time away from his Mother for her to receive therapy and gain insight into her behaviour.
In EJK & TSL (No 4) [2006] FamCA 1022, the Full Court quoted Clemett (supra) where Nygh J had said that the best interests of the child were the paramount consideration, and stated:
17. Although we note that this decision pre-dates the Family Law Reform Act 1995 (Cth) when the whole of Part VII of the Family Law Act 1975 (Cth) (‘the Act’) was subject to ‘the best interests test’, we accept the principles espoused are relevant to this application, and the child’s best interests, even if not the paramount consideration, on the facts of this case are a significant consideration. The importance of the consequences for a child of granting or refusing a stay are well recognised.
The Full Court then went on to cite Kirby J in JRN & KEN v IEG & BLG which reiterated the importance of considering the consequences for the child.
It is a significant consideration as to whether it is in the child’s best interests that he live with the Mother for another year pending an appeal. If it were to be in the child’s best interests for this to occur, the original Order would not have been made ordering that the child live with his Father and the Mother have a period of no contact with the child in order to gain treatment and insight into her behaviour.
Having considered all relevant matters and the requirements of various authorities, notwithstanding that there may be one arguable point, I do not consider that I should grant the application for a stay and therefore dismiss it.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 5 September 2012.
Associate:
Date: 5 September 2012
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