Sampson and Hartnett (No. 3)

[2007] FamCA 373

FAMILY COURT OF AUSTRALIA

SAMPSON & HARTNETT (NO. 3) [2007] FamCA 373

FAMILY LAW - ORDERS - Stay of operation of order pending appeal

Family Law Act 1975 (Cth)

APPLICANT: Ms Sampson

RESPONDENT: Mr Hartnett

INDEPENDENT CHILDREN’S LAWYER: Ms Karagiannis

FILE NUMBER: SYF 3827 of 2004

DATE DELIVERED: 30 April 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Moore J

HEARING DATE: 27 April 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lloyd

SOLICITOR FOR THE APPLICANT: Paul & Paul Lawyers

COUNSEL FOR THE RESPONDENT: Mr Richardson SC

SOLICITOR FOR THE RESPONDENT: Karras Partners

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of NSW

Orders

1. The application for a stay of Order 17 made 21 March 2007 is dismissed.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3827 of 2004

Ms Sampson

Applicant

And

Mr Hartnett

Respondent

REASONS FOR JUDGMENT

Proceedings

1. On 4 December 2006 I concluded the hearing of proceedings for property settlement and parenting related to the parties’ two children, now aged 4 and 2½ years respectively.  Reasons for judgment in the parenting proceedings were delivered on 14 February and the parties given an opportunity to contribute to the form of orders having regard to the findings on key issues, but that was not forthcoming and thus orders were made on the delivery of reasons in the property proceedings on 21 March. 

2. On 18 April the mother filed a Notice of Appeal from those orders, as to both parenting and property.  At the same time she filed an application for a stay of the operation of order 17 pending the determination of the appeal and for costs of the stay application absent the father’s consent to it.  When the matter was heard in the list on Friday, her counsel, Mr Lloyd, advised that an application for expedition of the appeal had been prepared on her behalf but not yet filed. 

3. The parenting orders need not be replicated here.  They provide for equal shared parental responsibility and [per order 17, the subject of the stay application] for the children’s residence to be established in Sydney no later than 1 May 2007.  Expressed generally, the orders [per order 18] structure the children’s time in stages and each platform brings about an incremental increase in their time with their father until the end of January 2009, from which point their time is shared between their parents week about during school terms and for half of all the school holidays.  Pending the relocation to Sydney by 1 May, the orders provided for the children to be together for the duration of time spent with their father, that was to become unsupervised, and otherwise the time prescribed by the interim orders was maintained for those weeks.  For the next 6 months until the end of October, while living in Sydney, their time with their father is increased to 2 days and 2 nights each week, alternating between weekdays and weekends in four weekly cycles.  For the following 3 months until the end of January 2008 [and the beginning of the 2008 school year] there is an increase by starting those periods in the morning of the first day rather than the afternoon, thus giving the children 3 days and 2 nights each week with their father.  The stages beyond the beginning of the 2008 school year and other orders related to their time arrangements are set out in order 18.  Against that framework, the stay application is directed to the obligation to re-establish the children’s residence in Sydney no later than 1 May. 

Principles

1. The language of some of the authorities relevant to the discretion to grant or refuse a stay of orders pending appeal are not particularly apt when addressing parenting orders dealing with children’s arrangements [eg. preserving the subject matter of the litigation] but the principles have been adapted for that purpose and are discussed by the Full Court in Clemett and Clemett (1981) FLC 91-013. At p 76,175, Nygh J., who gave the leading judgment, referred to the first instance decision of Carlin and Carlin (1977) FLC 90-320 per Watson SJ. and expressed his agreement with what had been said there; namely:

   ‘Without in any way fettering discretion it seems to me that I should in this case consider (a) the rights of the children (see section 43); (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 appeal.’

2. But Clemmet went on to add:

   ‘Whilst we agree with the considerations as set out….in Carlin…..we must stress that the most important of them is the one listed by him as the first: “the rights of the children”.  This must outweigh any presumption which might apply in non-custody matters that a party is entitled to “the fruits of the litigation”.

   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.’

3. Mr Lloyd, counsel for the mother, relied on two other cases as a basis for principle.  CSN v JBN (1998) FLC 92-833 [Full Court], I think it fair to say, emphasises the importance of the desirability of limiting the frequency of changes for the children in the future, a consideration which did not form part of the trial judge’s decision in that case. Hock Hing v Foster (No 1) (1989) 13 Fam LR 79 is a decision of Kirby P [as he then was] sitting as President of the Supreme court of New South Wales Court of Appeal and again, amongst other things, places some significance on the undesirability of moving a child from the custody of one parent to the other in circumstances where it would be a relatively short time [6 weeks] before the expedited appeal would be heard in that case and the child had been in the care of one parent for 20 months.

4. Bearing in mind the best interests of the child is the paramount consideration, these decisions indicate that other relevant considerations, some of which are interlocked or overlap, are these:

   ·the delay in applying for a stay;

   ·the bona fides of the applicant in making the application and/or in bringing the appeal;

   ·the time it is expected the appeal will be heard and determined;

   ·the merits of the grounds of appeal;

   ·the child’s arrangements if the stay is granted or is refused;

   ·the impact, including the frequency, of changes for the child if the stay is granted or is refused;

   ·whether the child’s present circumstances [pre-order] are satisfactory;

   ·any hardship suffered by the parties as a result of granting or refusing the stay;

   ·whether refusing a stay will render a successful appeal nugatory by making it impossible or impracticable to restore the appellant’s position. 

Submissions

1. The account to follow is an attempt to condense the more complete submissions made by counsel but I trust captures the points made. 

2. Taking his submissions first on behalf of the applicant, Mr Lloyd acknowledges a stay of order 17 would require consideration of order 18 (ii) and possibly order 18 (iii) if the outcome of the appeal is not known before 1 November.  He advises that the mother would agree to implement the time the children would spend with their father as set out but, rather than that occurring in Sydney, the father would spend the time with them in the vicinity of Geelong as he has been doing, subject to his capacity to do so. 

3. In substance, Mr Lloyd identifies ground 4 as relevant to the stay application –

   ‘Having regard to the fact that Her Honour on the evidence considered it appropriate that the Appellant mother be the principal carer of the children on 20 nights out of every 28 nights until early 2009 the imposition of relocation is not justified both in a comparatively short time and/or at any future time.’ 

4. Given the contemplation inherent in the orders that in foreseeable future, at least until 2009, primary care would remain with the mother and the time with their father during the pending appeal period.  That can be achieved without the need to move to Sydney.  While the expedition application is yet to be filed, if granted the appeal should be heard within 3 months or 20 weeks and it would be hard to imagine in that event any need to consider a time frame beyond what is provided in 18 (ii) or certainly beyond 18 (iii) which takes the situation to the end of January 2008.  In short, the orders can be implemented without change the residence of the children.  Mr Lloyd also suggests there might be occasions in that time when the children could visit their father in Sydney.  That said, Mr Lloyd acknowledges the children remaining in Geelong would be an imposition on the father and there is a prejudice to him in ‘both financial terms and in terms of effort’.  However, he submits that needs to be weighed against the prejudice to the mother who would be required to uproot herself from Geelong, find accommodation in Sydney, return to collect the children and house herself here pending the outcome of the appeal.  Mr Lloyd drew attention to the authorities previously mentioned about the undesirability of making changes and, in this case, if the mother were to go to the expense of relocating to Sydney and her appeal were then successful as to that part, then she would have the upheaval and expense of returning to Geelong.  The cost of securing accommodation in Sydney [including payment of bond and rent of estimated $500 per week in advance] would be upfront or initially around $4,300 and then there are other practical arrangements to be addressed such as electricity connection and so on.  The $12,000 she is to be provided as lump sum maintenance will disappear fairly rapidly and she may find herself coming back to court for additional financial assistance.  That money will be wasted if the Full Court finds the children should remain living in Geelong.  The lesser of the two evils, as Mr Lloyd put it, is first to ensure contact takes place and while that produces some ‘small prejudice’ to the father, he seems to have been able to do it in the past and any significant difficulties for him – or example, about finding accommodation in the area – can be addressed by a provision for liberty to apply.  Mr Lloyd concludes his submissions by offering an undertaking of the mother to prosecute her appeal expeditiously and says there is no objection to the father being granted liberty to restore the matter if some difficulty should arise. 

5. Mr Richardson SC, identifies the characterisation of the grant of a stay as a ‘small prejudice’ to the father as a misconception.  The starting point should be that the judgment under appeal is correct and he should not be deprived of the benefit of the outcome and nor should the children be deprived of the benefit of the orders.  The submission about the prosecution of the appeal in an expeditious manner is questionable, in effect, when the time frames are considered; that is, the judgment in the parenting proceedings were delivered on 14 February but the Notice of Appeal was not filed until the last day of the period allowed following the delivered of the property judgment and the making of orders in both sets of proceedings on 21 March.  In other words, the Notice of Appeal could have been ready and filed much earlier, as might have been the application for expedition which is still not filed.  As for the time within which the appeal might be expected to be heard, with or without the application for expedition being successful, the Full Court’s workload means it is not unusual to wait extensive periods for judgment, with the result that the grant of a stay may operate for a prolonged period.  This is not a case where there is to be a change in the children’s care arrangements from one parent to the other but a change in where they are living [issues such as a change of school do not arise] and, if it comes to that, the change brought about by the move can be reversed.  Added to that, the grounds have little focus on matters relevant to appellable error; for example, examination of grounds 1 to 7, 9, 15 and 16 are all matters going to discretion or weight.  Others, for example 8, 10 and 14 are vague and difficult to understand.  Moreover, ground 4, the only ground addressed, does not address the time the children see their father and has to be seen in light of the findings at paragraph 82(iii) of the reasons and conclusions expressed in other passages in the judgment such as in paragraphs 108 and 110 which have not been challenged by the appeal.  The prospect of a stay as sought for a period that may be beyond the end of the year, in the face of the strength of those findings, is manifestly contrary to what was determined to be in the children’s best interests.  The father has work commitments, obligations to J and financial restraints where his finances have already been strained and it is ‘misguided’ to think some arrangement could be made for the children to have time in Sydney while still living in Geelong.  It is acknowledged there will be a level of inconvenience to the mother making the move if she succeeds on appeal, but that has to be seen in the context of the inconvenience to the father for the past 2 ½ years when things have been made as difficult as possible for him and his time with the children has been in a motel room environment.  Finally, if the mother’s position about the shortage of funds to make the move is accepted, there must be some question of her ability to fund the costs of the appeal. 

6. Ms Karagiannis, the independent children’s lawyer, supports the dismissal of the stay application and adopts the submissions made by senior counsel for the father. 

7. In his brief reply, Mr Lloyd rejected any suggestion of delay in a critical sense as unwarranted, he submits it is important to look to the grounds of appeal and not determining it, the transcript for the appeal is being funded by further borrowing, while there may have been criticisms of the mother nonetheless the conclusion is that the children’s welfare would be best met by remaining in her primary care, contact is presently being complied with, and there is nothing to indicate the children’s relationship with their father, which has grown despite the difficulties, would not continue to develop in the circumstances proposed by the mother pending the appeal. 

Conclusion

1. All matters considered, I have concluded the stay application should be dismissed. 

2. It is true the reasons related to parenting orders were given, for the most part at least, some weeks prior to the orders issuing on 21 March.  But I place no weight on the fact that the Notice of Appeal was not filed until near to the expiration of the permissible period.  It is also true that the earlier publication of the reasons gave more time than is normally the case for grounds of appeal to be prepared even though the form of orders were not published until 21 March.  But there may be reasons why an appeal is not filed sooner rather than later and they may be quite unrelated to any intentional or untoward delay in exercising the right of appeal.  The stay application was filed contemporaneously with the Notice of Appeal and nothing is to be made here of the timing of either. 

3. Nor are the bona fides of the applicant to be doubted, either in exercising her right of appeal or in bringing the stay application.  Certainly no submission was made to the contrary. 

4. Whether a stay is granted or refused, it cannot yet be said when the appeal will be heard, more particularly whether that will be sooner rather than later given the as yet unfiled expedition application.  However, even if expedited it seems reasonable to suppose there will still be a delay of some months.  If one takes an optimistic outlook and sees it as being heard within, say, three to five months, as Mr Richardson says that will not be the end of it because there may very well be further time before judgment is delivered.  Therefore it could still be many months before the process of appeal is taken through to a conclusion even if the application for expedition is successful. 

5. As for the merits of the appeal, in theory this may seem to be a difficult factor for a trial judge to consider, but of course it is to be approached with a fresh look at the reasons and with a readiness to objectively identify a legal argument in light of the grounds foreshadowed.  Having done so with the 16 grounds referable to the parenting orders here, I have to say the merits are not particularly apparent.  The first ground contends error in failure to find the presumption of equal shared parental responsibility does not apply or is rebutted for reasons related to the nature of the parties’ relationship, the violence between them, and by the assertion that the relocation to Geelong was not opposed by the father and thus shared parenting arrangements are impracticable.  As far as I can tell, the latter [in 1.4] conflates two different concepts – one is about decision making responsibility and the other is related to time spent.  Grounds 2 – 7 inclusive are related to questions of discretion and weight, though ground 3 asserts impracticability but foreshadows unenforceability because the form of wording does not require either parent to do anything in relation to the children, an argument I would have thought unlikely to be seen at appellate level as having any real substance.  I agree with Mr Richardson that grounds 9, 15 and 16 fall into the same weight argument category, to be evaluated in due course.  Other grounds - 8, 10 and 11, 12, 13 and 14 - relate to matters of evidence, broadly defined, and the assessment of it.  All in all, the grounds, not just separately but cumulatively, do not present with a strong merit base but suggest argument about the outcome in light of decisions about the body of evidence and the ultimately assessment of the weight to be given to it.  Even so, it is an exceptional case where there is no argument to present and it is accepted the appellant has arguments to present here. 

6. If the stay is granted, the arrangements for the children will progress to time spent with their father as set out in order 18, but those arrangements will occur in circumstances where he continues to travel to Victoria as he has been doing for the past 2½ years, with all the cost and travel time involved in that exercise.  The cost and convenience factor for their father, undertaken to date over such a sustained period, is no small matter.  But even more significantly, that scenario means the children will continue to experience their father in a rented room setting, whether that be motel or unit accommodation similar to what he had established before or even if that is continued in the same lodge with the same friendly people around.  It remains nonetheless rooms rented for the purpose rather than his own home with the things that make up his life around them and with their half brother, J, freely available to them on those occasions.  Reflection on the important qualitative nature of the setting in which young children experience a parent underscores the importance, in the interests of these children, of having that opportunity with their father.  That is discussed in the judgment, including the passages Mr Richardson identified, and the findings related to that setting and that opportunity are significant to the well being of these children. 

1. If the stay is not granted, the converse will apply for the children and the benefits for their well being from that opportunity will follow.  By the same token, it is recognised that the appellant will incur cost and inconvenience in returning to Sydney and, as recognised in the judgment, the move will represent a considerable wrench for her from supports and a settled network established in Geelong.  The cost argument is met at least in some measure by the provision of funds within a month of the orders to see her sufficiently financed to make the move, but there is no doubting the inconvenience for her of having to make such arrangements.  If she succeeds on that aspect of her appeal then I would not say the costs of moving back to Sydney had been ‘thrown away’ because in the months they would have been here the children would spend time with their father in his home setting and with J around, but it is recognised there would be further costs to her in returning to Geelong in that event.  It is accepted, therefore, that hardship will result one way or the other from the decision to either grant or refuse a stay.  It is also recognised that not granting the stay will mean disruption for the children.  They would move now from Geelong to Sydney where they would remain over the months anticipated for the appeal outcome to be known and then, if that aspect succeeds, they would be taken back to Geelong again, with all the disruption a move of that nature entails.  That would not involve changing schools at this stage of their lives, but nonetheless there would be other important changes involved for them. 

2. Also, this is not a case in which I could comfortably say the children’s present circumstances are satisfactory, even if the time spent with their father increases over the months according to the structure of the orders but in Geelong rather than in Sydney.  It is true they have a good relationship with their father, developed over the time spent in his care in rented premises in the Geelong vicinity, and no doubt that could and would continue if circumstances made it necessary.  But there are worrying aspects to the children’s history and I do not see their interests defined simply by quantitative considerations of time with their father but by a structure that brings about for them the vital change of his closer involvement in their lives, also in a qualitative way, to the point where they are taken from a supervised setting for relatively limited duration while in his care [as prevailed at the time of hearing] to spending equal time with him [after the calibrations from one platform to the next over the next 20 months or so].  The orders imposed a process of increased time in a way thought best for the children, but their interests are not defined by time alone, the environment of their father’s home with its day to day life setting and all that offers them is an important accompanying feature. 

3. Accordingly, despite the understandable weight to the contrary, the balance tips in favour of the dismissal of the stay application which in my opinion is the result more consistent with the paramount consideration of the best interests of the children. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate: 

Date:  30 April 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as SAMPSON & HARTNETT