RA and Y
[2009] FCWA 127
•22 SEPTEMBER 2009
[2009] FCWA 127
| JURISDICTION | : | FAMILY COURT OF WESTERN AUSTRALIA |
| ACT | : | FAMILY LAW ACT 1975 |
| LOCATION | : | PERTH |
| CITATION | : | RA and Y [2009] FCWA 127 |
| CORAM | : | MONCRIEFF J |
| HEARD | : | 21 SEPTEMBER 2009 |
| DELIVERED | : | 22 SEPTEMBER 2009 |
| FILE NO/S | : | PTW 6224 of 2006 |
| BETWEEN | : | RA |
| Applicant/Mother | ||
| AND | ||
| Y | ||
| Respondent/Father | ||
| Catchwords: |
STAY pending Appeal - relocation of children to non-convention country
Legislation:
Family Law Act 1975 - s 106A
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Ms P Giles |
| Respondent | : | Mr J Hedges |
Solicitors:
| Applicant | : | Carr & Co |
| Respondent | : | O'Sullivan Davies |
[2009] FCWA 127
Case(s) referred to in judgment(s):
Clemett and Clemett (1981) FLC 91-013
Clovelly and Clovelly [2009] Fam CA 860
Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium (1986) 160
CLR 220
Eastland Technology Australia Pty Ltd & Ors & Whisson and Ors reported (2003) 28 WAR
308
Minister for Immigration & Multicultural & Indigenous Affairs and B & B [2003] Fam CA
541
Re Evelyn No 2 (1998) FLC 92-817
[2009] FCWA 127
1 The Court is asked to consider competing applications arising as a consequence of the judgment of her Honour Justice Penny and orders made on 18 June 2009 relating to the parties’ four children.
2 The husband’s application was filed on 24 August 2009, and the wife’s application in a case was filed on 2 September 2009.
3 The husband has sought orders requiring the wife to deliver up to him the children’s passports and for orders pursuant to s 106A of the Family Law Act 1975 appointing the Registrar of the Family Court to execute in the name of the wife the application form and photograph of [Frances Y] born [in] June 1995, one of the parties’ children, required for Frances’ proposed enrolment in the [overseas school].
4 Further, he sought enforcement of some outstanding costs orders, but it appears they have now been satisfied and that issue has fallen away.
5 The wife, by way of her application, seeks a stay of the orders made by her Honour pending the determination of an appeal that has been lodged.
6 The effect of the wife’s application is to restrain the parties from removing or permitting the removal of the children from the Commonwealth of Australia.
7 The appeal has now been included in the list of appeals to be determined by the
Full Court in their next sitting in Perth, which is the week commencing 19 October
2009.8 If I make the orders as sought by the wife then there is no need for me to further consider the application by the husband.
9 The orders appealed by the wife are those providing as follows:
3.(e)
The father and the mother shall do what is reasonably required for Frances to attend boarding school [overseas] commencing August 2009, if she is accepted and wishes to go.
4. Commencing the beginning of 2010:
(a)
[Joanna], [June] and Frances shall live with the father and he has liberty to remove them from the Commonwealth of Australia to reside overseas;
(b)
Joanna and June and subject to the requirements of Frances’ school and Frances’ wishes, Frances shall also live with the mother for up to 50 percent of the time, including during the overseas school holidays in Australia and during periods that the mother is overseas;
(c)
[David] shall live with the mother in Perth subject to his wishes.
6.
All previous injunctions restraining the parties from removing the children from Australia are discharged.
[2009] FCWA 127
8. Each party shall in a timely fashion do all such things and sign all such documents as may be required to obtain [national] passports and to renew [the] passports for all the children as and when required.
11. The mother shall inform the father of the date she will be [overseas].
12. At the end of 2012 Joanna and June shall be interviewed in Perth with the father to facilitate their presence by the single expert or such other expert as agreed to by the parties or ordered by the Court as to their wishes, if any, regarding their continued residence overseas or changing their residence to Perth.
13. The mother shall pay the father’s costs fixed at $2,000.
10 The stay is sought with respect to order 3 (e) and order 4(a).
11 The grounds of appeal are:
1. Given the findings of the learned Judge (sic) that:
(i) the father had obstructed the relationship between the children and their mother overseas in the past; (ii) the father had attempted to dictate to the mother the manner in which she can live her life when the children reside with her in Australia; (iii) the father is bitter about the circumstances of the breakdown of the marriage; (iv) the father has a very poor opinion of the mother; (v) the father refers to the mother as “scum” and says that in his opinion she was “cheating, lying and prostituting herself in every respect”; (vi) the father had influenced the views of the children in the past; (vii) the father had put inaccurate affidavit evidence before the Court. She erred in concluding that the best interests of the children would be served by permitting the father to relocate the children, Joanna and June, [overseas] for a period of two years or more.
2. The learned Judge failed to direct herself correctly as to the relevant domestic law.
3. The learned Judge failed to ensure that relevant and timely information as to the wishes and feelings of the children was ascertained and available at the time of the hearing.
4. The learned Judge failed to ensure that relevant information relating to foreign law was before the court at the time of the hearing or at all.
[2009] FCWA 127
5. The learned Judge failed to take into account the significance of the proceedings between the parties overseas.
12 This of course is a discretionary judgment and discretionary judgments are
notoriously difficult to appeal. The principles determining an appeal against an exercise of discretion are those enumerated by the High Court of Australia in House v The King (1936) 55 CLR 499 in the joint judgment of Dixon, Evatt and McTiernan JJ at pp 504 and 505, where their Honours observed:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.”
13 The basis to the challenge of her Honour’s judgment as enumerated in the Notice
of Appeal clearly falls within the principles so enumerated and would suggest some
reasonable prospect of success on the appeal.14 Of particular note, in support of her application, the wife filed an affidavit on
4 September 2009. Insofar as the stay of order 3 is concerned the mother raised issues disputing what are asserted to be Frances’ wishes concerning the time at which she commences boarding school overseas.
15 Although her Honour’s judgment speaks of Frances consenting and desiring to
attend boarding school overseas, there appears now to be some controversy about her wishes in the matter. It would seem that Frances is aware of the appeal and that the only issue for the mother is when Frances would commence school overseas assuming she wishes to do so.
16 The mother has appealed order 3(e) of the orders made by her Honour, but it
would seem that she would not stand in Frances’ way if she wishes to commence boarding school in January 2010. The issue now appears to be what her wishes in the matter actually are – and an absence of a mechanism to objectively determine the same.
17 Clearly, the opportunity for Frances to commence boarding school overseas in
August 2009 has passed, the question now really being the amount of catching up Frances would have to do, although it would seem that Frances, who in year 9 now, will be in year 9 again in her first year overseas, so, subject to the curriculum one would hope the task would not be too great were she to start next calendar year.
18 There would seem to be, however, no reasonable impediment to Frances
undertaking the relevant tests, as were contemplated, in Perth to discern whether or not
she indeed will be offered a place at the particular school.
[2009] FCWA 127
19 I note the husband’s concerns about the requirement, if she is offered a place, to pay what may be a non refundable payment equivalent to A$12,000.
20 The wife’s position about Frances’ education in 2010 appears to be somewhat
equivocal, however the order is subject to an appeal notwithstanding the position the
wife states in her affidavit in support of her stay application.21 Prudence may well dictate that some clarity should be sought as to the possibility or otherwise of the loss of a non refundable deposit should I grant the stay.
22 Irrespective however, and subject to the inquiries about the husband’s financial
commitment (subject to her test results), there appears to be no reasonable impediment to Frances undertaking the entrance test and certainly when this matter came on before me for directions on 3 September 2009, I was given the clear impression that that would proceed. It appears now that it has not, although the wife has reaffirmed her position of agreement to the tests at least being undertaken.
23 In support of the stay application against paragraph 4.(a) of her Honour’s orders
the wife raises issues based on advice she has received from her overseas lawyer. She
enumerates these concerns as follows:(i) An application to register the order made in Australia could be made to the Sharia Courts overseas, but it will not be recognised and enforced.
(ii) An application to vary the order (so that it is not recognised and enforced) could be made by the husband at the same time or afterwards.
(iii) She would have to defend the husband’s application and start the process for custody of the children all over again in the Sharia Courts.
(iv) The basis of an application to vary the order would most likely be a repetition by the husband of his allegations about her character and his complaint that the wife is a non-practising Muslim and an unfit mother.
(v) That as a result of these complaints the Sharia Court and the Religious Department are likely to refuse to register or agree to vary the order with the result that the wife’s access to the children will be strictly curtailed or prevented altogether.
(vi) The fact that the wife opposed the husband’s wish to send the twins (Joanna and June) to the [private school] in Perth would make her look very bad in the eyes of the Sharia Court and the Religious Department.
24 Further, the fact that the husband referred to the wife as a “lying, cheating
prostitute in every respect” in the Australian proceedings will mean that the Religious Department would ensure that she not see the children with the prospect that the wife might be sent to a rehabilitation centre to be re-educated at the direction of the
[2009] FCWA 127
Religious Department of the Sharia Court before it will consider allowing her to see the children again.
25 Further, the wife notes that [the country] is not a party to the Hague Convention on the Civil Aspects of International Child Abduction.
26 It is clear upon a reading of her Honour’s judgment that she did made the
findings asserted by the wife in her Notice of Appeal, further, and with great respect to her Honour, it is clear that there was little consideration by her Honour of the relevant law that may be applicable to the children, given her intended orders, overseas. The transcript of the proceedings before her Honour would suggest that such consideration as was given was based on comment from the bar table.
27 That is not to say that evidence of the same was presented to her Honour and her
Honour overlooked it. Indeed, the way the Notice of Appeal is cast (and the transcript) would tend to suggest that evidence relating to the relevant foreign law was not placed before her Honour.
28 Her Honour dealt only shortly with that aspect of the matter in her judgment at paragraphs 57, where Her Honour deals with the issue based on credit.
29 However, I was not the trial Judge and I do not know in full what evidence was
before her Honour and of course did not make the observations of the parties that her
Honour did.30 That being said however, the concerns raised by the wife are grave concerns in
my view.
31 As the learned authors of Seaman’s Civil Procedure in Western Australia observe in paragraph 3976:
“The successful litigant at first instance will ordinarily be entitled to enforce the judgment pending the determination of any appeal. It is for the applicant for a stay to move the court to a favourable exercise of its discretion. It will not do so unless special circumstances are shown justifying the departure from the ordinary rule. The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation, or where refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal.
It is often put shortly that it will first and foremost be necessary to establish that without the grant of a stay, the right of appeal will be rendered nugatory. If that can be demonstrated, the stay will generally still be refused unless it can be established that the appeal process ultimately has reasonable prospects of success so as to result in the grant of relief to the appellant.”
32 The Full Court of the Family Court of Australia in Re Evelyn No 2 (1998) FLC 92-817 adopting the passage from Carlin and Carlin (1977) FLC 90-320, where Watson SJ summarised the relevant law as follows:
[2009] FCWA 127
“Without in any way fettering discretion it seems to me that I should in
this case consider:
(a) the rights of the children; (b) the delays as to appeal; (c) whether refusal of a stay renders a successful appeal nugatory; (d) the hardship to the successful respondent in comparison to the hardship of the appellant; (e) the grounds of the appeal.”
33 Further, in Clemett and Clemett (1981) FLC 91-013 the Full Court on appeal from an order refusing a stay unanimously adopted the judgment of Nygh J where he said at page 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 the stay of proceedings for at least a short period.”
34 Subsequent statements of the relevant law confirm those principles, and I also
refer to the decision of the Full Court of the Supreme Court of Western Australia in Eastland Technology Australia Pty Ltd & Ors & Whisson and Ors reported (2003) 28 WAR 308, in particular at paragraph 9 where the Court stated:
“In light of the authorities, we may attempt to distil what we take to the
general applicable relevant principles:
• the successful litigant at first instance will ordinarily be entitled to enforce the judgment pending the determination of any appeal; • it is for the applicant for a stay to move the Court to a favourable exercise of its discretion; • it will not do so unless special circumstances are shown justifying the departure from the ordinary rule; • the central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation or where refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. It is often put shortly that it will first and foremost be necessary to establish that without the grant of a stay the right of appeal, whether upon the grant of leave or special leave or not, will be rendered nugatory; • if that can be demonstrated the stay will generally still be effused unless it can be established that the appeal process, whether upon the grant of leave or special
[2009] FCWA 127
leave or not, has ultimately reasonable prospects of success so as to result in the
grant of relief to the appellant;
• if that hurdle can be overcome the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant; where, for example, the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted.” 35 In the context of proceedings relating to the welfare of children, those principles,
as observed by Nygh J in Clemett, must be subject to the overarching principle that the
best interests of the children are the paramount, although not only, consideration.36 It appears that the appeal in this case can be heard without delay and further that any hardship to the respondent through the granting of a stay is likely to be slight.
37 I am satisfied that the grounds of appeal demonstrate that there is some prospect of success in the appeal.
38 The principal concern to me in determining this application is whether or not a refusal to grant the stay would render the appeal nugatory.
39 I have particular regard to the matters raised by the wife in her affidavit as to the
manner in which she may be treated and the rights of the children to have a
relationship with their mother affected under foreign law.40 Mr Hedges, for the husband, sagely observes that the question for the Court is
whether the risk should be taken in allowing the husband the benefit of the orders he has obtained and the measurement of that risk, given the position taken by the wife during her evidence at trial where her concerns appeared to be less.
41 The measure of “risk” has been judicial considered, certainly in the context of
financial matters by the High Court in Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium (1986) 160 CLR 220 where Dawson J at 223 noted:
“However, special circumstances….will, I think, exist where for whatever reason, there is a real risk that it will not be possible for the successful appellant to be restored substantially to his former position if the judgement against his is executed see McBride v Sandland [No2] (1918) 25 CLR 369.”
42 The transposition of this principle into children’s cases is manifestly obvious
(see for example Minister for Immigration & Multicultural & Indigenous Affairs and B & B [2003] Fam CA 541) particularly where the lawful exercise of power by one Sovereign State can nullify that of another.
43 Clearly, if she is right, then there is a very significant risk that her appeal rights would be rendered nugatory.
44 Further, if she is right, the best interests of the children, as they are determined
in this jurisdiction, may be significantly prejudiced through the potential loss of a
relationship with their mother.
[2009] FCWA 127
45 Such an outcome does not sit comfortably with the objects of Part VI of the
Family Law Act which enshrined the right of the children to have a meaningful relationship with each of their parents. This was a consideration that weighed heavily for his Honour Faulks DCJ in Clovelly and Clovelly [2009] Fam CA 860 where his Honour considered the fact of Singapore and Malaysia not being signatories to what is commonly known as the Hague Convention, observing, at paragraph 9 “it is clear that if in fact the mother were to seek to remain overseas or in Singapore, contrary to her sworn intent, for whatever reason, it would be extremely difficult, particularly if the child was not – or even if she were an Australian citizen, with any ordinary process to bring her back here”
46 This is a finely balanced matter, however I am satisfied for the reasons I have
given above that the mother is entitled to move the Court to exercise its discretion in her favour. Accordingly, I make orders in terms of paragraphs 1, 2 and 3 of the wife’s Form 2 Application filed 2 September 2009.
47 I adjourn further consideration of the father’s Form 2 Application to be relisted after judgment on the appeal.
48 I will, however, hear from counsel as to any orders that are required to enable
Frances to sit the entrance exam should the husband wish to proceed with that exam, given the uncertainty about the financial consequences which might flow from Frances successful completion of the test and the apparent uncertainty of her wishes.
I certify that the preceding 48 paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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