Sadberry and Jablon (No.1)

[2014] FCCA 1101

FEDERAL CIRCUIT COURT OF AUSTRALIA

SADBERRY & JABLON (No.1) [2014] FCCA 1101

Catchwords:
FAMILY LAW – Stay Application.

Anderson & Senior (Stay Appeal) [2013] FamCAFC 152
Sheldon & Weir (Stay Application) [2011] FamCAFC 5
Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Trahn & Long (No.2) [2008] FamCAFC 194
Jennings Construction Limited v Burgundy Royal Investment Pty Ltd (1986) 16 CLR 681
Carlon & Carlon (1977) FLC90-320

Applicant: MS SADBERRY

Respondent: MR JABLON

File Number: DUC 300 of 2013

Judgment of: Judge Dunkley

Hearing date: 27 May 2014

Date of Last Submission: 27 May 2014

Delivered at: Parramatta

Delivered on: 30 May 2014

REPRESENTATION

Solicitor Advocate for the Applicant: Mr Perkins

Solicitors for the Applicant: Queensland Lawyers

Counsel for the Respondent: Ms Obradovic

Solicitors for the Respondent: Peacockes

ORDERS

1. The Application in a Case filed 30 April 2014 is dismissed.

2. Order 2 made 20 March 2014 is discharged and in lieu thereof:

   (a)By not later than 6 July 2014 the mother is to cause the child X born (omitted) 2012 to be resident in (omitted) New South Wales or in (omitted) New South Wales.

   (b)The father is to pay the mother’s reasonable relocation costs from (omitted) Queensland to (omitted) New South Wales or (omitted) New South Wales.

   (c)The father is to pay to the mother pending further order by way of urgent spousal maintenance the sum of $100 per week first such payment to be due on date that the mother signs a lease for premises in either (omitted) New South Wales or (omitted) New South Wales with such further payment of $100 per week to be paid by the father to the mother each subsequent seven days.

IT IS NOTED that publication of this judgment under the pseudonym Sadberry & Jablon (No.1) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

DUC 300 of 2013

MS SADBERRY

Applicant

And

MR JABLON

Respondent

REASONS FOR JUDGMENT

1. This is the decision arising from the stay of orders sought by Ms Sadberry in an Application in a Case E-filed on 30 April 2014.

2. Mr Jablon opposes the granting of a stay with respect to the orders made on 20 March 2014.

Procedural History

1. On 16 August 2013 Mr Jablon (hereinafter the father) filed an Initiating Application in the Local Court at Dubbo which was given a first return date in that Court on 16 August 2013.

2. In that Application he sought final parenting orders. He also sought interim parenting orders and procedural parenting orders for parentage testing.

3. When it came before the Local Court Magistrate it was unserved and the Application was adjourned to 23 August 2013.

4. On 23 August 2013 the Local Court Magistrate made orders for substituted service and the case was adjourned to 2 September 2013.

5. On 2 September 2013 there was no appearance by Ms Sadberry (hereinafter the mother). Undefended the Local Court Magistrate made the order for parentage testing to determine the paternity of the child X born (omitted) 2012, ordered the mother pay the father’s costs and transferred the case to the Federal Circuit Court at Dubbo on a date to be fixed.

6. On 19 November 2013 the case had its first directions hearing in the Federal Circuit Court at Dubbo. There was no appearance by the mother.

7. On the father’s application the case was adjourned so that he could file an Amended Initiating Application. Substituted service orders with respect to that Amended Initiating Application were made and he was ordered to file a copy of the parentage testing results with the Court prior to the adjourned date. The case was adjourned to 11.30am on 26 February 2014. 

8. On 6 December 2013 the father filed an Amended Initiating Application which for the first time sought an order that the mother relocate to the (omitted) area with the child X born (omitted) 2012.

9. On 26 February 2014 Mr Simpson of Counsel appeared on the mother’s behalf and over the father’s objection the case was adjourned and was listed for Interim Hearing at 9.30am on 20 March 2014. The mother was ordered to file and serve a Response and any relevant Affidavit by 14 March 2014.

10. On 20 March 2014 an Interim Hearing “on the papers” in the usual way was conducted. Both parties were represented, the father by Counsel and the mother by her solicitor via AVL from (omitted). At the conclusion of the Interim Hearing an extempore judgment was delivered and the following orders were made:

    1. By consent, the parties shall have equal shared parental responsibility for the child, X born (omitted) 2012.

    2. By not later than the conclusion of the Term 1 school holidays in Queensland, the mother is to cause the child, X born (omitted) 2012, to be resident in (omitted), NSW.

    3. As and from the first Saturday after the mother’s return, the father shall spend time with the child from 9.30am to 10.30am on each Saturday and Sunday.

    4. Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

    THE COURT FURTHER ORDERS THAT:

    5. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report.

    6. The Family Report to deal with the following matters:

    a. The nature of the relationships of the child with each of the child’s parents and with significant other persons.

    b. The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.

    c. The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

    i. either of the parents: or

    ii. any other child, or significant person, with whom the child has been living.

    d. The practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

    e. The capacity of each parent, or another person, to provide for the needs of the child, including emotional and intellectual needs.

    f. Each parent’s attitude to the child and to the responsibilities of parenthood.

    g. Such other issues as the Family Consultant considers relevant.

    7. The Family Consultant is requested to complete the report not less than four weeks before the directions hearing date, being 21 November 2014.

    8. The parties shall attend all appointments with the Family Consultant and shall ensure the subject child attend all appointments with the Family Consultant, as requested by the Family Consultant.

    9. The Family Consultant may inspect the Court file and any documents produced on subpoena to which no objection has been lodged.

    10. This case is listed for further directions at 9.30am on 21 November 2014 in the Federal Circuit Court at Dubbo consequent upon release of the Family Report.

    11. The parties shall on or before 30 May 2014 do all acts and things, sign all documents and give all consents necessary to cause the child’s birth certificate to have endorsed on it the father’s name. Any associated costs to be at the expense of the father.

11. On 16 April 2014 the mother filed a Notice of Appeal.

12. On 30 April 2014 the mother filed an Application in a Case seeking a Stay of the orders made on 20 March 2014. In support of that Stay Application on 14 March 2014 the mother filed an Affidavit that she swore on 13 March 2014.

13. With respect to her appeal the mother is yet to file an Appeal Index and no directions have yet been made by the Appeals Registrar.

14. The draft index to the Appeal Book is due to be filed by 12 June 2014.

15. The Application in a Case seeking the stay was given the earliest possible return date being 9 May 2014.

16. On 9 May 2014 there were no appearances by either party, seemingly because the Application in a Case had not been served, and the sealed copies hadn’t been received by the mother.  

17. The Application in a Case seeking the Stay was adjourned to 27 May 2014.

18. On 27 May 2014 the mother and father were both legally represented. The Stay Application was heard and judgment was reserved.

Chronology

(omitted) 1970	Father born
(omitted) 1974	Mother born
(omitted) 2011	Parties relationship commences and the mother was residing in (omitted) NSW and the father resides in (omitted) NSW
(omitted) 2012	The subject child X born
January 2013	Parties relationship ends
20 February 2013	Parties engage with Interrelate (omitted) for a time
March 2013	The father through his solicitors raises paternity issues and the parties agree to undertake parentage testing. Testing confirms that Mr Jablon is the father of the child X.
24 April or 29 April 2013	Whilst enroute to Brisbane the mother telephones the father advising that she is moving to Brisbane.
1 August 2013	Father files Initiating Application in the Local Court at Dubbo.
August 2013	Mother now living in (omitted) Queensland.

1. None of the chronology is contentious except for the date on which the telephone call in April occurs.

Evidence on the Stay Application

1. The mother relies on her Affidavit affirmed 28 April 2014.

2. In that Affidavit she asserts that she has been unable to comply with the orders of 20 March 2014 and they have become frustrated because:

   a)Her motor vehicle is unreliable;

   b)She does not have the financial ability to return from (omitted) Queensland to (omitted) NSW as ordered;

   c)She is unwell;

   d)The child is unwell;

   e)She has become estranged from her parents who own the home at (omitted) NSW in which it was envisaged she would live by virtue of the orders made 20 March 2014;

   f)That she would suffer financial detriment if the orders were not stayed;

   g)That her mental health (she has been suffering from Bi-Polar Disorder for a long period) would deteriorate if she returned; and

   h)That her older children who are not the subject children would suffer adverse consequences if she returned;

3. The father through his counsel in her course of submissions on the stay application offered to assist the mother in obtaining alternate accommodation in (omitted) and offered to assist her payment of rent on that accommodation by providing to her the sum of $100 per week. It was submitted the father had previously telephoned the mother offering to help with her relocation expenses.

Determination

1. The granting or dismissing of stay applications are discretionary judgments, and can be granted or refused on terms.

2. There is a long history of case law with respect to the consideration of stay applications. Some of the relevant case law can be found in:

   ·    Anderson & Senior (Stay Appeal) [2013] FamCAFC 152

   ·    Sheldon & Weir (Stay Application) [2011] FamCAFC 5

   ·    Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

   ·    Trahn & Long (No.2) [2008] FamCAFC 194

   ·    Jennings Construction Limited v Burgundy Royal Investment Pty Ltd (1986) 16 CLR 681

   ·    Carlon & Carlon (1977) FLC90-320

3. There Honour’s Chief Justice Bryant, and Justices Boland and Crisford in Aldridge & Keaton (Stay Appeal) highlighted a number of relevant principles that they considered. Those principles were:

   ·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.

4. All of the above principles have relevance to the case for or against the stay between Ms Sadberry and Mr Jablon.

5. In her Notice of Appeal filed 16 April 2014 in Part E thereof the mother enumerates seven grounds of appeal being:

   1. The Learned Trial Judge erred in that he misdirected himself as to the proper approach to be followed in determining the child application in this case with regard to time to be spent with the father.

   2. The Learned Trial Judge erred in that he misdirected himself as to the proper approach to be followed in determining the child application in this case.

   3. The Learned Trial Judge erred in that he misdirected himself as to the proper approach to be followed in determining child relocation cases in that he has allowed a final determination of such question at an interim hearing without the full evidence of the parties and without allowing cross examination of any witness and without engaging the assistance of a Family Report writer.

   4. The Learned Trial Judge erred in that he has not afforded the mother procedural fairness.

   5. The Learned Trial Judge erred in finding that the circumstances of this case impelled him to make an order for the child to become a resident of a different state to which the mother was resident to facilitate limited time with the father without having any regard or any proper regard to the personal and financial circumstances of the mother and/or the circumstances of the mother’s three (3) children from an earlier relationship.

   6. The Learned Trial Judge erred in failing to exercise or properly exercise his discretion.

   7. The Learned Trial Judge failed to provide adequate or proper Reasons for Judgment.

6. On the stay application the legal representative for the mother submitted that the enumerated grounds of appeal were arguable. He did not elevate the enumerated grounds of appeal as being any higher than arguable. The main thrust of the mother’s legal representatives argument on the hearing of the stay for the granting of the stay was the frustration of the orders made 20 March 2014 and the effect that new evidence, if allowed at appeal, might have on the appeal.

7. Notwithstanding this I am satisfied that the mother is pursuing her appeal on a bona fides basis.

8. The father is entitled to the benefit of his judgment. He is also entitled to presume that the judgment is correct.

9. If the mother returns to (omitted) or (omitted) and at final hearing is permitted to relocate to (omitted) with X then X will have since April 2013 lived in the Central West of New South Wales, moved to (omitted), returned to the Central West of New South Wales and moved again to (omitted) Queensland.

10. Given her age X is likely to have only minimal awareness of those moves, if the stay is not granted and at final hearing the mother is permitted to relocate.

11. There is no evidence before me as to the timeframe for the hearing of the Appeal. I do not know if the Appeal can be heard within this calendar year. I do not know if the application to rely on new evidence in the Appeal will be granted or even made.

12. The final hearing of the competing parenting application is likely to be heard in the Federal Circuit Court within the first quarter of 2015.

13. If the stay is granted there is very little likelihood of the child X being able to begin the establishment of a meaningful relationship with her father given the distance between his home in (omitted) NSW and the mother’s home in (omitted) Queensland (in excess of 2000 kilometres).

14. This was one of the important factors considered within the context of the Interim Hearing. It was not the only factor considered.

15. As found at the Interim Hearing, and which remains the current circumstance, the best interests of X remain that she lives with her mother and begin the process of the establishment of a relationship with her father. That can only reasonably practicably occur if X lives within the Central West of New South Wales.

16. The proposal of the father to assist the mother with her relocation costs and with $100 per week towards her rental costs in the private market in (omitted) overcome most of the financial difficulties the mother says has frustrated the orders of 20 March 2014.

17. The mother has for a long time suffered from Bi-Polar Disorder. When she lived in the Central West of New South Wales she had that disorder and it was treated. She will undoubtedly be upset if the stay is not granted and she is to return to New South Wales with X. She leads no expert evidence either at Interim Hearing or on the hearing of the stay application to say that her parenting would be compromised, if she returns. She leads no evidence in support of the claim she and X are otherwise unwell.

18. The mother will suffer some financial detriment if the stay is not granted but that detriment is not as significant as the detriment that X will suffer in not being able to begin the establishment of a relationship with her father.

19. There will be inconvenience to the mother if the stay is not granted. There will be inconvenience to the father if the stay is granted. He would have to travel to (omitted) if he were to spend any time with X. It is likely that the inconvenience to each would be about equal. As both circumstances involve considerable travel and cost.

20. The best interests of X is the most significant consideration of all of the above factors. Her best interests are met as was found at the Interim hearing by her being able to begin the process of establishment of a relationship with her father and living with her mother.

21. On balancing all of the above the Application in a Case seeking a Stay of the orders made 20 March 2014 is dismissed on the condition that the orders made 20 March 2014 are varied so as to require the father to meet the mother’s reasonable relocation costs and to contribute $100 per week by way of urgent spousal maintenance in order to assist in her accommodation costs in (omitted) or (omitted). A period to 6 July 2014 will be allowed so as to find accommodation, sign a lease and contract removalists.

22. Although there is no financial information before me there is no doubt that the mother has financial need and the father by his concession has capacity to pay. This is sufficient to establish the urgent spousal maintenance order.

I certify that the preceding forty six (46) paragraphs are a true copy of the reasons for judgment of Judge Dunkley

Date: 30 May 2014