Pettit and Anor and Fairs and Anor (No.2)

[2017] FCCA 98

FEDERAL CIRCUIT COURT OF AUSTRALIA

PETTIT & ANOR & FAIRS & ANOR (No.2) [2017] FCCA 98

Catchwords:
FAMILY LAW – Stay Application – First and Second Applicant seeking a stay of final orders made by this Court on 20 October 2016 pending the outcome of their application for leave to appeal and the appeal if leave is granted – application dismissed.

Legislation:

Family Law Act 1975 (Cth), Division 12

House v The King (1936) 55 CLR 499
Gronow v Gronow (1979) 144 CLA 513
Tranh & Long [2008] FamCAFC 194
Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Friscioni & Friscioni [2009] FamCAFC 43
Sheldon & Weir [2011] FamCA 2
Cape & Cape [2013] FamCAFC 114
Blakely & Morrell (No.2) [2014] FamCAFC 226

First Applicant: MR PETTIT

Second Applicant: MS PETTIT

First Respondent: MS FAIRS

Second Respondent MR FAIRS

File Number: MLC 6856 of 2014

Judgment of: Judge Bender

Hearing date: 11 January 2017

Date of Last Submission: 11 January 2017

Delivered at: Melbourne

Delivered on: 11 January 2017

REPRESENTATION

Counsel for the Applicants: In Person

Solicitors for the Applicants: Not Applicable

Counsel for the Respondents: Mr Hanafin

Solicitors for the Respondents: Pearce Webster Dugdales

Counsel for the Independent Children’s Lawyer: Mr Schetzer

Solicitors for the Independent Children’s Lawyer: Schetzer Constantinou

ORDERS

1. The stay application filed on 9 December 2016 be dismissed.

2. The First and Second Respondent’s costs of this day be reserved and the question of costs be adjourned to 20 March 2017 at 9.45 am.

IT IS NOTED that publication of this judgment under the pseudonym Pettit & Anor & Fairs & Anor (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6856 of 2014

MR PETTIT

First Applicant

MS PETTIT

Second Applicant

And

MS FAIRS

First Respondent

MR FAIRS

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 20 October 2016 final orders were handed down which provided for the children of Mr Pettit (“the Father”) and Ms Fairs (“the Mother”), [X] born (omitted) 2001 (“[X]”) and [Y] born (omitted) 2003 (“[Y]”) to live with the Mother. Orders were made for [X] and [Y] to spend no time with and to not communicate with the Father and his wife Ms Pettit (“the Step-Mother”). 

2. On 1 December 2016 the Father and the Step-Mother (collectively “the Applicants”) filed an Application for Leave to Appeal and at the same time an Application in a Case seeking a stay of the orders made on

   
   

   20 October 2016. 

3. The Application for Leave to Appeal is listed before Justice Strickland on 1 March 2017.

4. On 28 December 2016 an Amended Draft Notice of Appeal was filed. The Amended Draft Notice of Appeal contains twelve grounds of appeal and will be detailed later in these reasons.

Evidence and Submissions

1. The Applicants rely on their Application in a Case and the following affidavits:

   a)the affidavit of the Step-Mother sworn 17 December 2016;

   b)the affidavit of the Father affirmed 18 December 2016; and

   c)a further affidavit of the Step-Mother sworn 9 January 2017. 

2. The Step-Mother also made oral submissions on behalf of she and the Father at the hearing of this matter.

3. The Mother and Mr Fairs (“the Step-Father”) (collectively “the Respondents”) rely on their Response to an Application in a Case filed 9 January 2017, the affidavit of the Mother sworn 8 January 2017 and the affidavit of the Step-Father sworn 8 January 2017. 

4. The Respondent’s solicitor Mr Hanafin made oral submissions on behalf of the Respondents at the hearing of this matter. 

5. Mr Schetzer, Independent Children’s Lawyer, appeared at the hearing and also made oral submissions to the Court.

The Relevant Law

1. The principles relating to a stay application involving parenting orders are now well established and have been cited with approval by the Court in multiple cases (including Tranh & Long [2008] FamCAFC 194; Blakely & Morrell (No.2) [2014] FamCAFC 226; and Sheldon & Weir [2011] FamCA 2).

2. In Aldridge & Keaton(Stay Appeal) [2009] FamCAFC 106, the Full Court comprising Bryant CJ and Boland and Crisford JJ set out the applicable principles of a stay application in paragraphs (17) and (18) as follows:

   “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 The King (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 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 Grounds of Appeal

1. The Grounds of Appeal set out in the Amended Notice of Appeal filed by the Applicants on 28 December 2016 are as follows:

   “1. Her Honour relied heavily on family reporter Dr J without giving us the opportunity to cross examine the doctor. This doctor is known as perjurous in the Family Court of Victoria. Documents submitted on the affidavit of Mr Pettit 18^th November 2016 state this in more detail. This includes the doctor lying in her reports, ignoring her guidelines, lying in her affidavits, being significantly underqualified for children on the spectrum and deliberately misinterpreting results (as stated, full detail within the aforementioned affidavit).

   2. Her Honour relied heavily on a report from Dr T without giving us the opportunity to cross examine the doctor who lied in his report, ignored important medical evidence and misrepresented diagnoses.

   3. Her Honour ignored all relevant medical evidence related to the official diagnoses of Mr Pettit and Ms Pettit, including specialized reports which directly contradict Dr J’s assumptions with hard science.

   4. Her Honour ignored the wishes of the children (which Her Honour had even stated that she knew where the children wished to live and under what visitation scheme (in our home, visiting mother on alternate weekends).

   5. Her Honour ignored all the children’s medical practitioners reports where they stated it was important that the children be involved in both parents lives and that [X]’s gender dysphoria and autism did not affect his capacity to make decisions relating to his living arrangements.

   6. Her Honour ignored the ICL deliberately ignoring his ICL guidelines (details of this significantly within the aforementioned affidavit). This included allowing them to collude with the other parties lawyer (as evidenced throughout both trials within 2016 whereby the judge at times yelled at the barristers for sharing notes and discussing the case inside and outside the courtroom).

   7. Her Honour erred in fact when she stated that witnesses were not in attendance in Court (when they were – once again, full details within affidavit of Mr Pettit 18-11-2016).

   8. Her Honour erred in fact when she stated that I (Ms Pettit) recorded the children all weekend. I did not. I specifically highlight this during cross examination.

   9. Her Honour ignored evidence of [X] himself where he discloses abuse, discloses the Respondents ignoring Court orders, and disclosing his distress about being returned to his mother’s home.

   10. Her Honour ignored the supervised reports submitted by Ms M where the children report abuse ([Y] while in mother’s care March 2015) and notes when [X] ran away and attempted to go for a knife.

   11. Her Honour states that within our care, the children will never have a relationship with mother, however, mother has alienated the children from us through to her manipulation of the current orders (stay of orders to be heard 11^th Jan 2016) and refusal to pass on letters as required by the orders. We have not had any significant time with the children since October 2015. Further examples of this alienation will be submitted to the judge on the hearing listed above. We have always encouraged a relationship with mother, whereas mother has always sort (sic) to alienate us. See orders throughout the trial which show we have always sort (sic) equal parenting whilst mother has sought total exclusion.

   12. Her Honour ignored that the children are part of a larger family. The children in our household have an additional 3 siblings. They have now been subjected to only being allowed to see each other once a month under mother’s supervision at which we are not allowed to be in attendance, mother refuses to disclose who else will be in attendance at visitations, and due to a previous instance whereby the children were exposed to family violence at the hands of Mr Fairs and Ms E (maternal grandparents of [X] and [Y]), our children are afraid to be in attendance if they are present.”

Consideration of the relevant considerations:

The bona fides of the Applicants 

1. It is submitted by the Applicants that they hold a genuine belief that the Court erred in the decision it made in relation to [X] and [Y] and that their appeal is genuine and cannot be seen to be made for any other reason.  

2. It’s submitted on behalf of the Respondents that there is no bona fides in the stay application, but rather that it is an attempt by the Applicants to have the orders varied because they are unhappy with the decision made in this matter. 

3. I accept that the Applicants genuinely hold a belief that the decision of the Court is wrong. However, the difficulty with the matters raised by them in the affidavit material filed in support of the stay application is that they primarily focus on wanting the orders changed, rather than addressing the alleged errors made by the Court.

The weighing of the risk that an appeal may be rendered nugatory if the stay is not granted in this matter

1. If the stay is not granted in this matter, the applicants’ appeal (if leave is granted) will not be rendered nugatory. 

The entitlement of the Mother and the Step-Father to the benefit of the judgment and the balance of convenience and the competing rights of the parties. 

1. Quite properly, the Mother and the Step-Father are entitled to the benefit of the judgment and to move on with their parenting of [X] and [Y] in the terms of the orders made by the Court.

2. A considerable component of the Applicants’ affidavits filed in support of the Stay Application addresses the distress the three children of their relationship are suffering as a result of the orders made.

3. Similarly, much of the oral submissions made today by the Step-Mother went to that issue. I have no doubt that the Pettit children are distressed that they are not seeing their brothers as often as they would wish. It was for that reason that in the orders appealed against, an order was made that they see [X] and [Y] on a regular monthly basis. The orders for that monthly time between the siblings were made in the face of opposition to those orders from the Mother and the Step-Father. 

4. Both parties have attempted to address me at length as to why that the time between [X], [Y] and the Pettit children has not as yet commenced. This is not a matter relevant to the Stay Application. 

5. Since October 2015, other than for two visits in April 2016, [X] and [Y] have not been spending time with the Applicants’ family. 

6. The orders made on a final basis on 19 August 2016 continue what has been quite longstanding arrangements for [X] and [Y].

7. I am not persuaded that there is anything before me that would make me consider that any of the parties will be disadvantaged by a continuation of the orders.

Do the Appellants have an arguable case? 

1. It is submitted by the Applicants that their appeal is genuine and that there are proper matters for argument before the Full Court.

2. The Applicants have an application they be given leave to appeal out of time. As part of his considerations of that application, Justice Strickland will consider the merits of the Applicants’ appeal to determine whether this is an appropriate matter to proceed to the Full Court for determination. 

3. It’s submitted on behalf of the Respondents that the Applicants’ grounds of appeal show no error of law or fact and the appeal is nothing more than an attack on the exercise of discretion by the Court and an effort by them to have the orders varied which is not the process or purpose of an appeal. 

4. It is therefore submitted by the Respondents that the Applicants do not have an arguable case.

5. I will consider each of the grounds of appeal contained in the Amended Draft Notice of Appeal. 

Ground 1: Her Honour relied heavily on family reporter Dr J without giving us the opportunity to cross examine the doctor. This doctor is known as perjurous in the Family Court of Victoria. Documents submitted on the affidavit of Mr Pettit 18th November 2016 state this in more detail. This includes the doctor lying in her reports, ignoring her guidelines, lying in her affidavits, being significantly underqualified for children on the spectrum and deliberately misinterpreting results (as stated, full detail within the aforementioned affidavit).

1. It was submitted on behalf of the Respondents that the Applicants should have put the Independent Children’s Lawyer on notice that they required Dr J for cross-examination.

2. Correctly, the Applicants referred to my determination at the commencement of the final hearing that I did not require Dr J for cross-examination. This determination was made on the basis that Dr J had not had any interaction with [X] and [Y] for well over twelve months and that [X] and [Y] should not be required to attend any further experts as to do so would have been bordering on system abuse given the number of interviews by experts, police and the Department of Health and Human Services they have been required to undertake in the last two years.. 

3. Given that Dr J’s evidence was not current and there was evidence before the Court from [X] and [Y]’s current treaters, I did not believe that the Court would greatly benefit from Dr J cross-examined.

4. Division 12A of the Family Law Act1975 (Cth) (“the Act”) allows the judge hearing a parenting matter to determine what witnesses will assist the Court in the determination of the matter.

5. The Applicants allege heavy reliance was placed on Dr J’s report in the determination of the matter. A reading of the judgment shows that the experts relied upon by the Court were those that are currently treating [X] and [Y]. 

Ground 2: Her Honour relied heavily on a report from Dr T without giving us the opportunity to cross examine the doctor who lied in his report, ignored important medical evidence and misrepresented diagnoses.

1. As was the case with Dr J, Dr T was not required for cross-examination as his report was out of date. 

Ground 3: Her Honour ignored all relevant medical evidence related to the official diagnoses of Mr Pettit and Ms Pettit, including specialized reports which directly contradict Dr J’s assumptions with hard science.

1. The Applicants did not place evidence from their treaters before the Court.

Ground 4: Her Honour ignored the wishes of the children (which Her Honour had even stated that she knew where the children wished to live and under what visitation scheme (in our home, visiting mother on alternate weekends).

1. The wishes of [X] and [Y] were very well known to the Court and were properly considered. The weight to be given to those wishes was a matter for the judge within the ambit of the exercise of discretion.

Ground 5: Her Honour ignored all the children’s medical practitioners reports where they stated it was important that the children be involved in both parents lives and that [X]’s gender dysphoria and autism did not affect his capacity to make decisions relating to his living arrangements.

1. The judgment clearly sets out in detail the reports and the vive voce evidence of the children’s medical practitioners and the weight given to them.

Ground 6: Her Honour ignored the ICL deliberately ignoring his ICL guidelines (details of this significantly within the aforementioned affidavit). This included allowing them to collude with the other parties lawyer (as evidenced throughout both trials within 2016 whereby the judge at times yelled at the barristers for sharing notes and discussing the case inside and outside the courtroom).

1. There were occasions where Counsel for the Independent Children’s Lawyer and the Counsel for the Respondents were observed discussing matters at the bar table. Counsel were asked to desist in this behaviour. This is not a breach of ICL guidelines.

Ground 7: Her Honour erred in fact when she stated that witnesses were not in attendance in Court (when they were – once again, full details within affidavit of Mr Pettit 18-11-2016).

1. The maternal grandmother was in hospital and unavailable to give evidence.

Ground 8: Her Honour erred in fact when she stated that I (Ms Pettit) recorded the children all weekend. I did not. I specifically highlight this during cross examination.

1. My notes of the Step-Mother’s evidence is she told the Court she did record [X] and [Y] all weekend. This can be clarified if the matter proceeds to appeal and the transcript obtained.

Ground 9: Her Honour ignored evidence of [X] himself where he discloses abuse, discloses the Respondents ignoring Court orders, and disclosing his distress about being returned to his mother’s home.

1. [X]’s evidence in this regard is set out in the judgment. [X]’s allegations are considered and findings made.

Ground 10: Her Honour ignored the supervised reports submitted by Ms M where the children report abuse ([Y] while in mother’s care March 2015) and notes when [X] ran away and attempted to go for a knife.

1. The report of Ms M is historical. The findings in relation to whether I was of the view that [X] was subject to abuse are within the judgment.

Ground 11: Her Honour states that within our care, the children will never have a relationship with the mother, however, the mother has alienated the children from us through to her manipulation of the current orders (stay of orders to be heard 11th Jan 2016) and refusal to pass on letters as required by the orders. We have not had any significant time with the children since October 2015. Further examples of this alienation will be submitted to the judge on the hearing listed above. We have always encouraged a relationship with mother, whereas mother has always sort (sic) to alienate us. See orders throughout the trial which show we have always sort (sic) equal parenting whilst mother has sought total exclusion.

1. The matters raised in this ground of appeal were considered and findings made.

Ground 12: Her Honour ignored that the children are part of a larger family. The children in our household have an additional 3 siblings. They have now been subjected to only being allowed to see each other once a month under mother’s supervision at which we are not allowed to be in attendance, mother refuses to disclose who else will be in attendance at visitations, and due to a previous instance whereby the children were exposed to family violence at the hands of Mr Fairs and Ms E (maternal grandparents of [X] and [Y]), our children are afraid to be in attendance if they are present.

1. As with ground 11, the matters raised in ground 12 are considered and findings made.

The period of time in which the appeal can be heard and without existing satisfactory arrangements may support the granting of a stay for a short period of time. 

1. The application for leave to appeal is listed on 1 March 2017. 

2. If leave is granted, directions will be given and if complied with by the Applicants, the appeal listed for hearing. It is most unlikely that the appeal could be heard until the second half of 2017 at the earliest. There will be a further period of time after the hearing of the appeal for the Court to consider the matter and hand down its decision.

3. If leave to appeal is granted, there is a real possibility that it could be another 12 months before the outcome of the appeal would be known.

4. The final orders made 19 August 2016 confirm living arrangements for [X] and [Y] that have been in place since October of 2015. The refusal to grant a stay will see a continuation of those longstanding living arrangements.

The desirability of limiting the frequency of any change in the children’s living arrangements; and

The best interests of the child, the subject of the proceedings. 

1. Whilst these matters are listed as separate principles to consider when determining a stay are the Full Court in the matter of Friscioni & Friscioni [2009] FamCAFC 43, held at paragraphs 55 to 57 as follows:

   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).

   56. In Clemett and Clemett (supra) 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.

   57. In Trahn and Long (No.2) (supra) the Full Court included as “principles” the following:

   the desirability of limiting the frequency of any change in a child’s living 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.

   It may be that these are not separate factors but that in the context of consideration of the best interests of a child it is desirable to limit the frequency of changes in the living arrangements for a child.

2. There is, I suggest, a paradox in requiring the trial judge who has already determined what is in the best interests of the children concerned to consider that question again on an application for stay pending leave to appeal or appeal. 

3. Perhaps the difference between the assessment of best interests at trial and best interests at a stay application relates to also considering the need to limit the frequency of changes in the children’s living arrangements. 

4. I am strongly of the view that a stay application involving children must be approached on the basis that the best interests of the children are the paramount consideration. That consideration may, at times, include the desirability of limiting the frequency of any changes in that child’s living arrangements. 

5. In this case, I have clearly made my findings about what I consider to be in the best interests of [X] and [Y] and have made orders that reflect my determination in that regard.

6. The orders that I made reflect what are longstanding living arrangements for [X] and [Y]. If I were to grant the orders that are sought by the Applicants today it would be an order which would impose a considerable change in those longstanding living arrangements. If the Applicants were unsuccessful in their application for leave to appeal of an appeal if leave is granted, then it is the granting of the stay which would cause [X] and [Y]’s living arrangements to change. Thus it can be argued that to not stay the orders will limit the frequency in any changes in [X] and [Y]’s living arrangements.

Conclusion

1. In this matter I am satisfied that the appeal is bona fide. 

2. I am satisfied that a failure to grant the stay would not render an appeal nugatory in the event that the Applicants are granted leave to appeal. 

3. Somewhat paradoxically, it is a requirement of the rules of this Court that the Judge who has delivered judgment is then rule on whether an application should be granted for a stay of their orders.

4. It is clear from my summation of the grounds of appeal as they currently stand that I do not necessarily think that many of those grounds have merit. That question will be determined by the Full Court. 

5. The timing of when the appeal will be heard in the event leave is granted is unknown. It is fair to say however that it will in all probability be up to 12 months before the outcome of any appeal is known if leave is granted. 

6. The Orders made on 20 October 2016 are in my view in [X] and [Y]’s best interests. Having considered the Applicants’ evidence and submissions today I continue to be of the view that those orders remain in [X] and [Y]’s best interests, especially as the failure to grant a stay will not expose them to any change in their quite longstanding living arrangements.

7. Accordingly, the application for a stay of my orders brought by the Applicants is dismissed. 

I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of Judge Bender

Date:  11 January 2017