SALT & SALT

[2020] FamCA 10

FAMILY COURT OF AUSTRALIA

SALT & SALT [2020] FamCA 10

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings.

Family Law Act 1975 (Cth)

Aldridge & Keaton [2009] FamCAFC 106
House v The King (1936) 55 CLR 499
M v M (1998) 197 CLR 250

APPLICANT: Mr Salt

RESPONDENT: Ms Salt

INDEPENDENT CHILDREN’S LAWYER: Mrs J Lloyd

FILE NUMBER: CAC 1754 of 2016

DATE DELIVERED: 15 January 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 15 January 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R Hoult

SOLICITOR FOR THE APPLICANT: Infinity Legal

COUNSEL FOR THE RESPONDENT: Mr J Haddock

SOLICITOR FOR THE RESPONDENT: Dobinson Davey Clifford Simpson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Jeanine Lloyd & Associates

Orders

1. I order that the application for a stay is dismissed.

2. Noting Order 7 of the Orders made of 18 December 2019 permission is granted to the legal practitioners for the parties and the Independent Children’s Lawyer to exercise access to the transcript of 17 September 2018 currently held in the Canberra Registry of the Family Court of Australia, along with exhibits M3 to M6, M8 to M33, M36 and F2, provided that such are to remain within the Registry area of the Family Court of Australia at Canberra at all times pending further order. 

3. It is noted that the transcript of 17 September 2018 and the identified exhibits contain material that may be described as child exploitation material and that the transcribing of that material may constitute an offence under territory law. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Salt & Salt has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1754 of 2016

Mr Salt

Applicant

And

Ms Salt

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter involves an application for a stay of orders pending an appeal lodged by the Father.  This follows a final hearing in which judgment was delivered in December 2019.  Pending the delivery of that judgment the Father was spending weekly supervised, albeit non-professionally supervised, time with H.  The evidence of the trial indicated that this arrangement had fostered a positive relationship between H and his Father.

2. In the judgment that was delivered in December 2019 that regime was ended and instead a regime which permitted the Father to spend time with H on four occasions each year, provided it was professionally supervised, was imposed.  The justification put forward for that arrangement was that without it, H was at an unacceptable risk of harm from his Father.

3. The Father seeks a stay of those December orders and a return to the non-professionally supervised weekly time. 

4. The principles in relation to the application for a stay have been recited by counsel for the Father in a manner that reflects the principles as set out in Aldridge & Keaton.[1]  I will not repeat those principles here. 

   [1] [2009] FamCAFC 106

5. The Father appropriately acknowledged that the onus is upon him to establish appropriate grounds for the stay and noted that the Mother is entitled in a general sense to the benefit of the judgment that she has received which is presumed to be correct pending the appeal.  The focus of the Father's application rested upon the merits of his appeal and also on a consideration of H's best interests pending that appeal.

6. It was put for the Mother that there should be questions raised about the bona fides of the Father's appeal.  I do not accept that his lodging of an appeal lacks any bona fides.

7. Turning then to the merits of the case, the grounds of appeal pursued by the Father are currently in a state of flux.  That is said without any great criticism.  The parties are currently in a position where they are unable to access the full transcript of the case.  I note that the exercise in assessing the merits of the case does not involve a detailed analysis of the grounds of appeal.  However, the following observations may be made.

8. To the first grounds which are reliant upon error of fact being asserted, the errors alleged do not at face value appear to accord with either the judgment or the evidence that was given in the case. 

9. Further grounds may be grouped together as grounds relating to the exercise of the discretion or the application of particular weight to particular factors.  Those grounds are in accordance with the principles set out in House v The King[2] notoriously difficult to pursue.

   [2] (1936) 55 CLR 499

10. The next matter related to an argued error in the linkage between the interaction between the Father and the child exploitation material and chats and the finding that there was risk.  It was put at this stage that it was impossible to find risk under those circumstances.  At present I am unable to accept that risk would not be open on the evidence as suggested, nor that the approach to risk is as suggested.  If it is suggested that it is required to find particular behaviour to find risk then that appears to be contrary to the High Court authority of M v M[3].

    [3] (1998) 197 CLR 250

11. A further ground or proposed ground at this stage relates to the delay in the delivery of judgment being inconsistent with the risk that has been found in the judgment.  The word undesirable is not sufficient to describe the delay in these proceedings strongly enough, however, that ground appears to me to be novel and am unable to assess it as being strong. 

12. On the whole I am unable to assess the grounds put forward as being strong.

13. The central focus of the stay application was the best interests of H which was a sensible focus to make in this case.  It may be observed that the effect of the orders that I made in December 2019 will reduce the relationship between H and his Father to something below a meaningful relationship in a context where he has otherwise had a positive relationship.  As noted in the judgment there will be consequential adverse impacts on H including as to his development.  The question arises, should a stay be granted to preserve that relationship in its current positive state pending an appeal which it may be anticipated will take place in six to nine months? 

14. It may be observed that best interests were the focus of the judgment in this matter.  In that judgment I determined that it was required that there be professional supervision to combat an unacceptable risk of sexual abuse which I found to be present. That is, professional supervision was a necessary component of that protection.  What is now proposed by the Father is the disposal of that professional supervision and the return to a regime that I determined was inadequate to protect H, having observed that it had been deficient in particular instances, that those people who were supervising lacked an understanding of the issues in the case and were not at arm’s length from the Father.  I determined that it was necessary that there be professional supervision in H's best interest to protect him against unacceptable risk.

15. While it may be presumed that there will be a degradation of the relationship between H and his Father under the regime that I have imposed pending appeal, the professional supervision now sought to be set aside is necessary for H's protection.  That tells strongly against the application for a stay.

16. Accordingly, the application for a stay is refused.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 15 January 2020.

Associate:

Date:  16 January 2020