Prendergast and Parsons (No. 13)

[2007] FamCA 1240

FAMILY COURT OF AUSTRALIA

PRENDERGAST & PARSONS (NO. 13) [2007] FamCA 1240

FAMILY LAW – CHILDREN – Application by husband for a stay of interim orders made pending appeal.  Application essentially moot given that the substantive judgment will have been delivered well prior to the time in which his appeal could possibly be heard.  Application dismissed

Family Law Act (1975)

Jones & Dunkel (1959) 101 CLR 298
Kelly & Kelly (1981) FLC 91-007 [76-105]
Clemett & Clemett (1981) FLC 91-013

APPLICANT: Mr Prendergast

RESPONDENT: Ms Parsons

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGF 764 of 2004

DATE DELIVERED: 10 October 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 10 October 2007

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT: Berry Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Robert Halliday & Associates

Orders

1. That the Form 2 Application in a Case filed by the husband on 4 October 2007 be dismissed.

IT IS DIRECTED

1. That the extempore judgment delivered this day be transcribed, placed on the court file and made available to the parties. 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 764 of 2004

MR PRENDERGAST  

Applicant

And

MR PARSONS  

Respondent

REASONS FOR JUDGMENT

1. I have before me an Application in a Case brought by the husband and filed on 4 October 2007 in which he seeks a stay of the child welfare orders made by me on 21 September 2007 pending appeal.

2. His Application is supported by an affidavit, hallmarked perhaps by its extreme brevity, and which is deposed to in the following terms:

   “(1)If the orders are not granted, then the welfare of the child continue to be at risk as detailed in the appeal and the evidence before the court in regard to this matter;

   (2) The appeal in concerned[sic] has merits and as detailed in the appeal application, please refer to the appeal filed against these orders;

   (3) The father[sic] application is prejudiced if the stay is not granted.  As these orders were made on the last day of the final hearing of which was going to be ready in few weeks, any orders are pre-empting and influencing final orders and is jeopardising the father[sic] application.”

3. On the day in question, I ordered (inter alia) that paragraphs 2 and 3 of the orders made by  Watt J on 21 January 2005 be suspended until further order.  My reasons for so doing are contained in my extempore judgment of the same date. 

4. The trial commenced on 26 March 2007 and proceeded over the following four days.  On 18 May 2007 I ordered the parties to attend for a psychiatric assessment.  This, the wife did, but not the husband.  The trial resumed on 10 September 2007 and was completed on 21 September 2007 on which day I made the orders complained of.  My reasons for so doing are clear and in my judgment, I had (inter alia) this to say:

   “6.It was upon the resumption of the proceedings that I received evidence from the wife who was cross-examined by the husband.  In bold contrast to that of the husband, I found her to be a credible witness and one upon whom I could safely rely.  Even at this stage, it is appropriate for me to say she was insightful and very much in harmony with the best interests of [the child].  The evidence given upon the resumption of the trial revealed, in a compelling way, an inexorable increase in the child's anxiety levels, her lack of confidence and diminishing sense of wellbeing which was starkly painted by the school Principal in her evidence before me.

   7.The evidence I heard concerning the physical condition of [the child] when delivered to school from the care of the husband was alarming.  It revealed, as I now see it, a fundamental failure on his part to care for her physical needs and a patent inability to understand its impact upon her sense of wellbeing and self‑worth amidst her own group of peers.  It was the wife who was obliged to be at school on delivery of the child to rectify this quite untenable situation. 

   8.I have heard very compelling evidence from [Dr E].  Despite the husband's inviolable and deeply etched views of the wife as an abusive, psychiatrically disturbed parent, [Dr E] found quite to the contrary.  The fact that the husband failed to submit himself to the assessment is one of real concern to me, given the whole of the evidence, and one from which it is open for me to draw an adverse inference in accordance with the principles clearly laid down in Jones & Dunkel (1959) 101 CLR 298. The evidence of [Dr E], when referencing certain parts of the husband's trial affidavit and his various closely typed letters of condemnation of those who spoke in favour of the wife and not of him, also caused uneasiness as to the husband's mental health and the issue of him hiding his views of the wife from his daughter, particularly at this highly stressful time in the proceedings.

   9.As matters presently stand, I am sufficiently concerned to suspend the husband's time spent with [the child] until further order and a detailed assessment by me of all the evidence, including that of [Mr P].  I also bring into account my overall view, as matters thus stand, of the penetrating evidence of [Ms K].  When I stand back at this time and reflect upon all of the evidence, I am left with the very strong impression that there is an unacceptable risk, even at this stage of the proceedings, for [the child] to spend time with her father.  This does not mean that, in the fullness of time when I have considered all the evidence, I may not be of the view that the time he is to spend with [the child] ought not be revived.  However, until then and given what I perceive as the persuasive evidence of the expert witnesses and [Ms Y], I am not prepared to take that risk.

   10.The husband's attitude to the wife is quite diabolical.  He perceives her as the enemy, a mother who is grossly psychiatrically disturbed.  He maintains an inviolable view that she is and has been an abusive parent.  His influence upon his own father, his sister and his neighbour, [Ms D], has been such that they blindly fell into line with what appears to me to be his distorted ideation.  Their evidence was most unimpressive, to put it mildly at this stage.  They were witnesses upon whom I cannot rely.  I am satisfied that even at this stage they were biased and prejudiced.  They were unconvincing. 

   11.I appreciate that this application has been made late in the proceedings, but in reality, it is simply brought on in furtherance from my earlier decision.  The husband has been on notice.  When I sought his response, he requested that the application be “in writing”, acknowledging that it was “serious."  I will not do as he requested, for he has had the advantage of being present for the whole of the trial.  In the circumstances, I propose to suspend his time spent with [the child] until further order.  I would hope to have my final judgment in the proceedings delivered with despatch, and certainly by October 2007.

   …

   14.The husband's rigid, encapsulated beliefs so clearly exposed in his affidavit material, his writings and in the evidence before me are all of serious concern.  He has demonstrated an inalienable, blinkered approach to the wife's mental well being and accepts nothing of the advice and recommendations of the expert witnesses.  His response, to the contrary, has been to attack them.  I have the gravest doubt that he is capable of restraining himself and those of his family from either overtly or covertly besmirching or in some way endeavouring to alienate the child from her mother’s affection.

   15.[Mr P] has made it clear that the husband, in his professional view, is mentally unwell and in need of psychiatric assistance.  The evidence describing the husband as having an encapsulated belief, and otherwise his conduct and unalterable negative view of the wife, is an issue to which I must give my careful attention.  Until such time as I have done this, given all that is currently within my command, I see it as an unacceptable risk to [the child]’s welfare and best interests in the current heated environment to permit contact to continue.” 

5. Insofar as the wife's position is concerned, she opposes the stay sought by the husband.  Her solicitor wrote to the court on 8 October 2007 advising that in their view, the husband’s application was devoid of merit and without reasonable prospect of success.  The author went on to note:

   “(1) The husband's application does not properly set out the orders of which a stay is sought;

   (2) The husband's affidavit is minimal in length and makes no cogent arguments in support of the application;

   (3) The husband's affidavit refers to an appeal which has not been received in any form by our office;

   (4) Paragraph 3 of the husband's affidavit is in fractured and broken English and exact understanding of same is impossible.”

6. In relation to that, that it is correct to say that the husband's affidavit “is minimal”.  However, he has filed within proper time a Notice of Appeal in which he has set out the grounds of appeal, albeit that they are in narrative form.  I do not attach any weight to the fact that the husband, who is a litigant in person in any event, has failed at that particular time to have forwarded to the wife's solicitors a copy of his Notice of Appeal.  I am sure this has since been rectified.

7. The Independent Children's Lawyer also opposes the husband's application.  Given the cost strictures in this matter, the Independent Children's Lawyer wrote to the court, noting the appeal and advising they did not intend to appear at the hearing this day, unless required by the court to do so.  The Independent Children's Lawyer wrote that it did not consider that the husband's application had merit and that Victoria Legal Aid was unlikely to fund them to appear at this hearing.

8. It matters not in my view that for the purposes of this application the husband may not have forwarded in a timely manner his Notice of Appeal.  However, as I said, I am sure that has since been rectified.  The plain fact remains that the husband has filed his Notice of Appeal in relation to the child welfare issues and that he did so on 2 October 2007.  I have carefully considered that document.  The actual orders against which he appeals are annexed to his Notice of Appeal.

9. The husband has been notified by the appeals registrar on 3 October 2007 of the requirement to file a pre-argument statement by 23 October 2007.  The problem with that is that any appeal from my orders of 21 September 2007 may well be considered moot, as I will have delivered my judgment in the substantive proceedings by not later than 19 October 2007. 

10. Be that as it may, the grounds for appeal relied upon by the husband and which address the child welfare orders made that day appear to me, from the narrative form in which they have been delivered, to address matters of discretion and fail to have regard to the fundamental issues relied upon by me in coming to my then determination.  In part, they inaccurately at times address the evidence and are somewhat confusing.  This is not a criticism of the husband, but his grounds do not address in proper form that which they ought as he mostly repeats the case relied upon by him.  What he seeks through this process, by way of orders sought, is for his appeal to be heard “urgently” and for an order that paragraphs 2 and 3 of the orders of Watt J be reinstated.

11. The orders sought by the husband in his application clearly address only the child welfare orders I made on 21 September 2007.  So much so is made clear by his annexing to his Notice of Appeal those orders.  Accordingly, it is that aspect which I address this day.

12. I do note, however, that the husband in his grounds of appeal records in narrative form, under the rubric of the “child's best interests”, aspects relating to other orders I made dealing with property issues in respect of which my oral reasons for judgment are on the court file.  I have yet to complete the property aspect of the proceedings, but what is clear to me thus far is that what little equity remains in the former matrimonial home and the two investment properties is fast being eroded by his failure to make provision for mortgage payments and the looming potential of a costs order in favour of Perpetual Trustees Ltd, the mortgagee, currently estimated at some $70,000. 

13. The husband is unemployed and save for the receipt of an extremely modest part-time income this year, remains unemployed and in receipt of government benefits.  It may well transpire that there is no equity at all in these properties.  Furthermore, the husband has not paid accumulated cost orders against him in favour of the wife in the sum of about $9000.  The situation in relation to those properties I simply observe is critical.

14. It is a well-recognised principle that a successful litigant ought not be deprived of the fruits of orders made in his or her favour in litigation without good cause.  The issue of a stay application, such as that brought by the husband this day, is a wholly discretionary exercise on my part; see Kelly & Kelly (1981) FLC 91-007 at page 76-105 per Fogarty J. In Clemett & Clemett (1981) FLC 91-013, Nygh J, when dealing with an application to stay an order made in a child welfare matter, had this to say at page 76-175:

    “It is not of course our function to canvass the correctness or otherwise of his Honour's decision on the substantive matter, but in determining whether a stay of proceedings should be granted in custody matters, clearly the welfare of the child should be paramount, as it should in all matters affecting the child.  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.”

15. I do not see, even from the narrative material provided by the husband, that the appeal is based on substantial grounds.  I accept, however, that he is acting in good faith and given the terms of my orders of 21 September 2007, it could never be argued that he is utilising the appeal process as a delaying tactic.  I am satisfied too that the present circumstances of the child created per force my order are satisfactory. 

16. To return to the position it was prior to the making of that order would, in my view, pose an unacceptable risk. However, the central thrust of my determination is that the appeal is essentially moot, as I will have delivered my final judgment even prior to the requirement for the husband to file his pre‑argument summary.  That will, in the result end, in both a real and practical sense, his appeal.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate 

Date:  19 October 2007