Pollard and Nordberg
[2019] FCCA 1359
•17 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| POLLARD & NORDBERG | [2019] FCCA 1359 |
| Catchwords: FAMILY LAW – Parenting – stay application pending determination of appeal from decision – the Magistrates’ Court order that the mother and children return to Victoria – oldest child not father’s biological child – biological father not served. |
| Legislation: Family Law Act 1975 (Cth) s.60CC |
| Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 |
| Applicant: | MR POLLARD |
| Respondent: | MS NORDBERG |
| File Number: | DGC 1312 of 2019 |
| Judgment of: | Judge Harland |
| Hearing date: | 17 May 2019 |
| Date of Last Submission: | 17 May 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 17 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Southey |
| Solicitors for the Applicant: | Warren Graham & Murphy |
| Counsel for the Respondent: | Mr Moore |
| Solicitors for the Respondent: | Foye Legal Pty Ltd |
ORDERS
The Interim Orders made by the Magistrates’ Court of Victoria at Town A on 16 April 2019 be stayed.
The Orders made by the Magistrates’ Court of Victoria at Town A on 8 May 2019 be suspended.
The mother’s solicitors provide the father’s solicitors with Mr B’s contact details including telephone number and address, within 24 hours.
Thereafter, the father’s solicitors serve Mr B with the documents in the proceedings forthwith.
The parties’ costs for today’s proceedings be reserved.
IT IS NOTED that publication of this judgment under the pseudonym Pollard & Nordberg is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DGC 1312 of 2019
| MR POLLARD |
Applicant
And
| MS NORDBERG |
Respondent
REASONS FOR JUDGMENT
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is the mother’s application for a stay of orders made in the Magistrates’ Court pending her appeal to the Family Court of those orders. The matter has a somewhat fractured history. I have had the benefit of detailed submissions from both Counsel this morning. I will not repeat all of the submissions and set out all the evidence, given the time pressures.
The chronology of the matter is as follows. Until 7 February 2019, the parties were living together in rented accommodation in Victoria. There are two children of the relationship; [X], born … 2016, and [Y] born … 2018. The mother also has a child from a previous relationship, [C], born … 2009 who also lived in the household with the parties.
On 7 February 2019, the mother took the three children to Town D. It is clear from the evidence, including text exchanges between the parties, that she did not inform the father that that was a permanent move, and on his case, did not inform him initially that she was taking the children at all. She initially indicated that she had taken them for a holiday to spend time with her family in Town D. It is apparent for the next couple of weeks the father was given the impression that the mother and children would be returning.
As is the case with many of these types of disputes, and particularly in parenting matters brought on in urgent circumstances as these have been, there are many factual matters in dispute. Both parties make allegations against the other of family violence, and both parties contend that they were the primary carer of the children. These are matters that the Court cannot determine on an interim basis.
The father commenced proceedings in the Magistrates’ Court at Town A on 21 March 2019 seeking urgent orders requiring the mother to return with the children to Victoria and failing that, for a recovery order to issue. In his final orders sought, he seeks equal shared parental responsibility for the three children. The interim orders simply refer to “the children”. In her response to the father’s application, the mother opposes the father’s orders and seeks an order permitting her and the children to remain in New South Wales, as well as a number of other orders.
On 16 April 2019 the Magistrate made orders that the children return to Victoria to live by no later than 29 April 2019. The order does not set out the names and dates of birth of the children. It then says that the children live with the mother and that the children ([Y] and [X]) spend time and communicate with the father upon their return. The order sets out a period of weekly time and further states that the child [C] may attend time on Saturdays. The Magistrate transferred the proceedings to the Federal Circuit Court in Dandenong and included a notation that the father had offered to vacate the former matrimonial home on the mother’s return to Victoria so the mother and children could live there.
The mother’s lawyers sent an email to the father’s lawyer at 5.02pm on Friday, 26 April 2019 enclosing unsealed documents, which included the mother’s application for an appeal. One of the things that has made this case a little more difficult is the fact that both solicitors, who are regionally based, filed a number of urgent applications, but sent the applications by express post to the registries rather than arranging for an agent or e-filing them or bringing them to urgent attention of the Court. This has meant that there has been a gap of some days between the documents being sent for filing and the solicitors receiving the sealed copies of the documents thereafter.
The matter is also made more difficult by the reason of the various listing dates that have been provided by both of the Magistrates’ Court and this Court. The mother filed an application for a stay at the Magistrates’ Court in Town A on 30 April 2019 which was not given a return date by that court until 14 June 2019. The father’s applications in the Federal Circuit Court were given initially two dates, 9 and 10 July 2020. The father filed a contravention application, which is now listed for hearing on 10 July 2020 in the Dandenong Registry.
On 29 April 2019 lawyers received notification that the file had been transferred to the Federal Circuit Court at Dandenong with a first return date of 9 July 2019. The mother forwarded her notice of appeal to the Family Court Registry on about 26 April 2019. It was filed on 3 May 2019 and given a return date of 28 May 2019. The father’s contravention application was served on 2 May 2019. It is also clear from the correspondence between the parties that the father’s lawyers put the mother’s lawyers on notice that they had instructions to file a recovery order if the mother did not comply with the orders made in the Magistrates’ Court, including seeking a warrant for the children’s recovery without further notice. The father filed an application in a case on 8 May 2019 at the Magistrates’ Court seeking the ex parte recovery order, and that order was heard and determined on the same day.
In a supporting affidavit, the father outlines the chronology of events, including referring to the mother’s notice of appeal and the return date for that appeal. He also refers to the application in a case to stay the interim orders listed on 14 June 2019 noting that he had not been served with those documents at that stage, in addition to the contravention application that he filed in the Federal Circuit Court. He also annexes those documents.
The Magistrate made the ex parte order for the warrant for the return of the children. The application and affidavit was not served on the mother’s lawyers and the mother was not given any opportunity to appear, despite there being lawyers for the mother on record and there being correspondence back and forth between the solicitors.
It is also of concern that the application sought ex parte orders without justifying why ex parte orders were necessary. The affidavit does not address that and does not address there being any risk of the mother absconding. Ex parte applications should be only made in the rarest of circumstances, given that, by their very nature, they offend the issue of natural justice. Whilst it is apparent from the affidavit and the annexures to that application that the father informed the Magistrates’ Court of the other applications, that does not cure the issue of the ex parte nature of that application and orders that were made. One of the consequences of that is the police turning up to recover all three children. Recovery orders involving the police should be a matter of last resort. One of the difficulties with an ex parte application is there is no opportunity for the other party to make arrangements to return the children directly without the police being involved, which can be traumatic for the children.
It also seems that the first the mother knew of that order was when the police attended on 13 May 2019, despite the application and the orders being made on 8 May 2019. I had some concerns about the application being filed at the Magistrates’ Court rather than in the Federal Circuit Court, given the matter had been transferred to the Federal Circuit Court and the Magistrates’ Court was now seized of the matter. The father’s Counsel raised the issue of concerns about delay in getting it before the Federal Circuit Court, although I do not accept that it could not have been brought to the urgent attention of the Federal Circuit Court as these matters often are. The application in a case is a prime example. It was listed urgently in the Melbourne Registry as there is no judge sitting in the Dandenong Registry this week.
What the father’s Counsel also said, however, was that his instructor was of the view that it was appropriate for the Magistrates’ Court to enforce its own order. The recovery application was determined by a different Magistrate. At this stage neither the Court nor Counsel appearing before me today have the benefit of a transcript of the proceedings before the Magistrates’ Court and any reasons. The Magistrates’ Courts deal with a high volume of lists and they do not ordinarily publish reasons. In the normal course, parties need to request a recording of the proceedings. I do note that all of these proceedings have come on fairly quickly.
The principles applying to applications for stays in parenting proceedings are well known, and the Full Court decision of Aldridge & Keaton(Stay Appeal) [2009] FamCAFC 106 is often quoted, particularly paragraph 18, which summarises the principles on point:
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.
It is a matter of discretion for a judge to determine whether or not to grant a stay. Where possible, stay applications are listed before the judicial officer who made the orders. There are several factors that the Court must consider in considering whether or not to grant a stay, and the Court is required to balance those competing factors.
A person who has obtained a judgment is entitled to the benefit of that judgment, and is also entitled to presume that that judgment is correct. That is a factor that the father relies on in opposing the application for a stay. The mere filing of an appeal does not operate as a stay. One of the factors to consider is whether the bona fides of the applicant for a stay. In this regard the father refers to inconsistencies in the mother’s material, particularly in respect to her allegations of violence, and in this respect, refers particularly to the fact that she made a police statement on 15 February 2019 but did not act on that. The father did not become aware of it until he saw the annexure on her affidavit filed 15 April 2019. The father was not served with an intervention application until the day after the court proceedings began. The father also points to the text exchanges between the parties in February where the mother is referring to returning and exchanging loving and cooperative messages. The father says this points to the mother acting in a way to test out what the father’s reactions were going to be. It is a matter of subterfuge which has led to the children being in Town D for a longer period, given the father’s understanding that they would be returning. He did not file his application until it became clear that they would not.
A stay may be granted on terms that are fair to all parties. And in this respect, one of the concerns of the father is that he has not been able to spend time and communicate with the children, except on one occasion on the telephone. If the stay is granted, then that would extend the period where the children are not seeing their father, who up until 7 February 2019 they were living with. That is damaging to the children, and particularly considering the young ages of the youngest two. The father’s Counsel has indicated that there are orders that he would seek in the event that the stay is granted to address that issue.
The Court also has to consider the risk that the appeal may be rendered nugatory if the stay isn’t granted and that is a substantial factor in determining whether or not it should be granted. In the circumstances here, the issue will be either the mother returning to Victoria with the children or the children returning to Victoria without the mother.
The Court needs to consider the grounds of appeal and lack of preliminary assessment as to the strength of the proposed grounds and whether or not the appellant has an arguable case. That does not mean the court needs to assess that the appellant is likely to succeed. The appeal grounds are that the Magistrate failed to consider the effect on the mother and children of the family violence perpetrated upon them by the father; that the Magistrate failed to consider the practicability or otherwise of the parenting orders made on 16 April 2019; and that the Magistrate failed to consider the effect of the parenting orders made on 16 April 2019 on the welfare of the children. The grounds of appeal are drafted in the absence of reasons; and the Court and both Counsel appearing today are operating without having the benefit of the reasons or, indeed, a transcript of the submissions made before the Magistrate.
What is apparent from the chronology that I have outlined is that the mother unilaterally relocated to Town D and is now seeking an interim relocation order. Those interim relocation applications can be particularly vexed and are not straightforward. In those applications and in applications for recovery orders, the best interests of the children are paramount consideration. The court is obliged to consider the relevant factors set out in Part 7 of the Family Law Act, and particularly the relevant s.60CC factors. This includes the competing allegations with respect to the family violence, and giving some consideration to issues of risk.
One of the concerning aspects of the orders made by the Magistrate is the orders with respect to the oldest child, who is not the father’s biological child. As I have referred to earlier, the father sought orders with respect to [C] as well as the younger two children. Although he refers in his material to [C] not being his biological daughter and says that he has been a father figure for her, it does not appear that anyone turned their mind to the need to serve the biological father and bring him and put him on notice of the proceedings. Whilst on the face of the orders on 16 April 2019 there seems to be some recognition of this, the spend time with orders of a difference between the three children, the orders themselves do not make it clear as to whether or not the Magistrate intended the orders indicate that all three children were to return to Victoria, although the spend time with order is expressed in a manner that [C] could spend time with the father on Saturdays.
The fact that [C]’s father was not on notice of the proceedings is a serious one and he should have been named as a party in the initiating application. It is not disputed that [C]’s father has not been joined to the proceedings subsequently or served with the material, but the father’s Counsel advised this morning that the father did not have any contact details for him. The mother’s Counsel has advised that her instructor has provided those to her and I will order that the mother’s solicitors provide the father’s solicitors with Mr B’s contact details, including telephone number and address within 24 hours. Thereafter, I will order that the father’s solicitors serve him with the documents in the proceedings forthwith. That issue with respect to [C] is one of the real issues of concern with respect to the orders made by the Magistrate.
The mother’s Counsel has indicated this morning that the notice of appeal be amended, and one of the issues currently is the fact that there is the recovery order made on 8 May 2019 which is not presently the subject of the appeal. The mother asks me to discharge that order, but I have some concerns about the proprietary of doing that and, indeed, under what provision I would do that in circumstances where it is not the subject of the appeal. As I indicated during the course of submissions, if I grant the stay, the recovery order needs to be suspended as it was made in aid of enforcing a stayed order.
One of the difficulties with the terms of the recovery order is that it does not name the children at all. What is clear is that certainly the police, when attending to execute the recovery order, were of the understanding that it would apply to all three children. An important factor in this case to consider is the desirability of limiting the frequency of any change in the children’s living arrangements. In this regard, if the stay is not granted and the mother is successful in her appeal and successful with respect to her interim relocation application, then the children would be returning to Victoria and then returning only to go back to Town D.
Another relevant factor is the period of time that the appeal can be heard and whether or not satisfactory arrangements can be made in the short term. The appeal is listed before McMillan J on 28 May 2019. That is its first return. I do not know if she will hear the appeal on that day or list it for hearing on another day. I have some comfort in the fact that it is listed before a judicial officer and not a registrar. The best interests of the children is also a significant consideration in assessing whether or not to grant a stay.
It is apparent from the material is that both parties are of limited financial means. Both parties are in receipt of Legal Aid. That makes the issue of spend time arrangements, if the parties remain the considerable distance apart that they are, a matter of concern. There is – and it appears, too, that whilst the mother apparently indicated that she would return if ordered to, when orders were made on 16 April 2019, it appears that that position has changed on her later material. That would also involve the youngest child, who is still being breastfed, being separated from the mother. Whilst that child is not solely reliant on breastfeeding, that is a significant factor so is for the potential siblings to be separated, given concerns about the orders being made with respect to [C], and no doubt these are all issues that will be agitated at a future date.
In considering all of the circumstances and noting that there are some factors that favour the father’s position in the stay being refused, particularly with respect to having the benefit of the judgment that he attained and some of the criticisms he makes of the applicant with respect to bona fides having some merit to it, I cannot be satisfied that she is not bona fide in bringing the appeal. I also cannot be satisfied that the appeal is not arguable. Also, there is weight on the issue of the desirability of limiting changing the children’s circumstances and the frequency, and the fact that the appeal will come to the attention of the Family Court on 28 May 2019, some 11 days away.
Having considered the material, I will grant the stay. But I will also make orders providing for there to be some communication between the father and the children. I will stand the matter down for Counsel to have discussions about that.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 23 May 2019