Sampson & Hartnett
[2007] FamCA 732
•1 June 2007
FAMILY COURT OF AUSTRALIA
SAMPSON & HARTNETT [2007] FamCA 732
FAMILY LAW – CHILDREN – RESIDENCE – APPEAL FROM FAMILY COURT OF AUSTRALIA – APPEAL AGAINST REFUSAL OF A STAY OF ORDERS – Established that the circumstances before the trial Judge in denying a stay of orders materially different from those currently applying - In application of relevant law to the circumstances of the case the appeal allowed - Limiting frequency of changes in custodial arrangements and preserving the current, and comparatively satisfactory, circumstances of the children pending the outcome of the substantive appeal - Discussed House v The King (1936) 55 CLR 499 and Clemett v Clemett (1981) FLC 91-013
House v The King (1936) 55 CLR 499
Clemett v Clemett (1981) FLC 91-013
Carlin v Carlin (1977) FLC 90-320
APPELLANT: J SAMPSON
RESPONDENT: M A HARTNETT
INDEPENDENT CHILDREN’S LAWYER:
FILE NUMBER: SYF 3827 of 2004
APPEAL NUMBER: EA
EA60
54of
of2007
2007
DATE DELIVERED: 1 June 2007
PLACE DELIVERED: Melbourne
JUDGMENT OF: Coleman, Thackray and Mushin JJ
HEARING DATE: 1 June 2007
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 30 April 2007
21 March 2007
LOWER COURT MNC: REPRESENTATION
COUNSEL FOR THE APPELLANT: Mr S. Lloyd
SOLICITOR FOR THE APPELLANT: Paul and Paul Lawyers
COUNSEL FOR THE RESPONDENT: Mr Michael Kearney
SOLICITOR FOR THE RESPONDENT: Karras Partners
INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr G M Gould
INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Legal Aid Commission of NSW Orders
1.That the appeal against the refusal of a stay on 30 April 2007 be allowed.
2.That Order 17 of the orders made by Moore J on 21 March 2007 be and is hereby stayed pending further order of the Full Court.
3.That the determination of the terms and conditions upon which Order 17 of 21 March 2007 has been stayed pending further order of the Full Court be remitted to the trial Judge.
4.That the Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
5.That the Court grants to the respondent a costs certificate pursuant to the provision of s 6 of the Federal Proceedings (Costs)Act 1981 that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
6.That the Court grants to the ICL a costs certificate pursuant to s 6 of the Federal Proceedings (Costs)Act 1981 that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the ICL in respect of the costs incurred by the ICL in relation to the appeal.
7.That the parties and the ICL are each granted a certificate pursuant to s 8(1) of the Federal Proceedings (Costs) Act 1981 that in the opinion of the Court if would be appropriate for the Attorney-General to authorise a payment under that Act to him/her in respect of such part as the Attorney-General considers appropriate of any costs incurred by that party in relation to the new trial ordered.
8.Note that the orders of the Full Court of this date have no effect upon the operation of orders made by Dawe J on 24 May 2007, nor the orders of Moore J on 30 April 2007 insofar as they provide for the children to spend time with the father in Sydney on the weekend commencing 1 June 2007.
9.Note that the appeal is fixed for hearing in Sydney on 23 August 2007.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Hartnett & Sampson.
FAMILY COURT OF AUSTRALIA AT MELBOURNE
Appeal Number:
File Number: EA 60 of 2007
EA 54 of 2007
J SAMPSON Appellant
And
M A HARTNETT Respondent
REASONS FOR JUDGMENT
1.By Notice of Appeal filed 1 May 2007 J Sampson, (hereinafter referred to as “the mother”), appealed against the refusal of a stay of orders made by the trial Judge on 30 April 2007 in proceedings between the mother and M A Hartnett, (hereinafter referred to as “the father”). The mother's appeal has been resisted by the father, whose resistance has been supported by Counsel for the Independent Children's Lawyer, (hereinafter referred to as “the ICL”).
2.Some background to the appeal is necessary and in the circumstances of this appeal need only be quite brief. After hearing proceedings in relation to parenting issues and property settlement and other financial matters between May and October 2006, the trial of which proceedings concluded on or about 4 December 2006 by which time the trial Judge had heard some 12 or 13 days of evidence, the trial Judge on 21 March 2007 produced Reasons for Judgment and, having heard further submissions as to the form of orders, made orders which, relevantly for present purposes, provided from Order 15 and following that the mother and father have equal shared parental responsibility for their children, S, born in April 2003 and T, born in November 2004.
3.Her Honour ordered that by no later than 1 May 2007 the children's residence "be established in Sydney". By Order 18 of the trial Judge's orders a graduated regime of time spent with each of the parents was provided for. The entirety of Order 18 of the trial Judge’s orders as they appear, amongst other pages, at Appeal Book pages 84 and 85 are incorporated in these reasons.
4.In summary, the trial Judge's parenting orders provided that the father spend an increasing period of time with the children, progressing to the point where as and from February 2009, by which time both children would be attending school, there was a substantially shared parenting regime to be in place.
5.It is common ground that the children had, for a period which commenced, in the case of the elder child, in about July 2004, and in the case of the younger child, from the time of that child's birth in November of that year - primarily resided with the mother whose usual place of residence was at Geelong in the state of Victoria. The father's usual place of residence at all material times was at Sydney in the state of New South Wales.
6.The father had exercised contact with the children, on a basis which her Honour discussed in her Reasons for Judgment in the substantive proceedings, which was in the main in accommodation in the Geelong area and, as the father's Counsel submitted to us earlier this morning, the trial Judge's orders provided for the first time unsupervised time spent with the father.
The trial Judge’s Reasons for Judgment
7.The trial Judge provided a comprehensive and closely reasoned judgment in support of her refusal of the mother's application to stay the orders which she had previously made and some reference to her Honour's Reasons for Judgment is appropriate.
8.Having set out some matters of background which are not controversial for present purposes and to some extent overlap with the background which I have briefly detailed, under the heading “Principles” the trial Judge set out the cases which she considered to be relevant to the discretion which she would exercise in determining the mother's application for a stay of her substantive orders. There is no suggestion in this appeal, and with respect to Counsel sensibly so, that the authorities to which her Honour referred were other than the relevant authorities. Indeed, this appeal does not turn in any way on what the law governing the proceedings before the trial Judge was, but rather relates to her Honour's application of the relevant legal principles to the facts as found.
9.Her Honour clearly had the benefit of extensive cogent and relevant submissions from Counsel and Senior Counsel in relation to the stay application. Her Honour recorded that the ICL supported the father's resistance to the mother's application for a stay, and set out in detail the submissions which were made to her. Without in any way diminishing the significance of those submissions it is not instructive for present purposes to refer in detail to them save to record that we have read them.
10.Under the heading “Conclusion” the trial Judge gave her reasons for determining that the stay application should be dismissed. To some extent events have overtaken a number of the facts to which her Honour there referred and in what senses that has occurred will be briefly mentioned in the course of reviewing the factors which led her Honour to conclude that a stay should be refused.
11.Her Honour recorded, accurately at the time, that whether a stay was granted or refused it "cannot yet be said when the appeal will be heard". It is necessary only to record for present purposes that as a consequence of an application for an expedited hearing of the appeal which was consented to and a subsequent direction by Finn J the substantive appeal will now be heard by the Court in Sydney on 23 August this year.
12.Inferentially, her Honour in paragraph 18 of her reasons alluded to the possibility, about which Counsel for the father has today made some submissions, that hearing of the appeal may be somewhat in advance of when judgment is delivered in the appeal and that, with respect to her Honour and Counsel for father, is certainly the reality. It is however, in my view, incorrect to submit, however obliquely Counsel for the father might have been doing so, that it necessarily follows that there will be a lengthy period between the hearing of the appeal and the delivery of the Court's judgment.
13.It is a matter of record that the appeal has been expedited. It is clear that the appeal against the trial Judge's refusal of a stay of her orders in relation to parenting issues has been heard expeditiously, a bench having been especially convened today for that purpose. It is illogical to imagine that against the background of the Full Court thus on two occasions affording these parties all possible expedition that it would then, to use the colloquial, “drag its feet” in producing a judgment after the appeal is heard on 23 August this year.
14.In any event, the effect of the appeal being fixed for hearing on 23 August 2007 is to put within a timeframe the question of a stay in ways which, with respect to her Honour, it could not be or have been when her Honour was obliged to deal with the stay application.
15.The trial Judge then turned her mind, with respect, correctly to the question of the possible merits of the mother's appeal. Her Honour made the point at the outset that there is something of a logical difficulty in a judge who has made a decision after a long trial and thus been well satisfied that such decision was correct, then being asked to in effect speculate as to the likelihood or otherwise of that decision being held to be wrong by the Full Court. Having made some observations in that regard, her Honour concluded the discussion of the possible merits of the mother's appeal against her parenting orders in the following terms:
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 ultimate 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.
16.Before us, with respect to Counsel opposing the mother's substantive appeal, it has sensibly not been suggested that the appeal is on its face necessarily hopeless or devoid of merit. I perceive that for our purposes, that is as far as we need to be concerned with that topic and, for my part, it has not been suggested and nothing to which I have either been referred or discovered for myself persuades me, that the mother's appeal against the substantive orders is necessarily hopeless or devoid of merit.
17.Her Honour then proceeded to consider what, on any view of the merits of the proceedings which she had determined, was a very vexed and difficult issue. Her Honour clearly and accurately in the passages which commence at paragraph 20 of her judgment considered the implications for the children in either granting or refusing a stay. With respect to her Honour it is not suggested in this appeal, nor, in my view, could it successfully be, that her Honour failed to have regard to any relevant fact or circumstance in that discussion.
18.In short, as her Honour clearly perceived, if the order was not stayed there would be hardship, inconvenience and difficulty for the mother who had not lived in Sydney for a period at that time of approaching three years, having to seek to do so, there being financial and other constraints, apart from the need to move away from what her Honour had accepted was a support network of family in the Geelong area. There would also have been a novelty for each of the children, comparative in the case of the elder child, absolute in the case of the second child, in moving to Sydney.
19.On the other hand, as her Honour traversed in her reasons for judgment, to stay the order would have meant a continuation of the father seeing the children in what her Honour was unable to say were satisfactory circumstances, the nature of which she detailed in paragraph 22 of her reasons for judgment. It is manifestly apparent that there was no readily acceptable alternative so far as the refusal or granting of a stay was concerned, somebody was bound to be inconvenienced.
20.Of significance, as was confirmed by Counsel for the father in response to a question from my brother Mushin J during the hearing of this appeal her Honour did not find in her Reasons for Judgment in the stay application or in her Reasons for Judgment in the substantive application, “risk” in the relevant sense if the children were to remain with the mother in Geelong pending the hearing of the appeal.
21.Her Honour concluded her reasons for judgment in the following terms:
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.
Relevant Law
22.The law which governs this appeal is not in doubt. It does not require extensive restatement. As Counsel for the father reminded us and, with respect, correctly, this is an appeal against the exercise of discretion. The statement of principle of the High Court in House v the King (1936) 55 CLR 499 at 505 is relevant for present purposes. Whilst members of the legal profession could probably recite the relevant passage, for the benefit of any party or parties who may be listening to the judgment I read on to the record the following statement by Dixon, Evatt and McTiernan JJ and it reads this way:
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 a 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.
It may not appear how the primary Judge has reached the result embodied in his order. But if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law proposes in the court of first instance. In such a case although the nature of error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
23.The principles could be said to be somewhat refined or perhaps some further guidance to be available as to how the general principles established in House v the King (supra) operate in an appeal such as this. Her Honour referred to a 1977 decision of the Full Court in Carlin v Carlin (1977) FLC 90-320 at paragraph 4 of her Reasons for Judgment and also to a later decision of Clemettv Clemett (1981) FLC 91-013. Her Honour set out at paragraph 5 of her judgment from the decision in Clemett (supra) the following passage:
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.
Against that short review of relevant legal principles, it is appropriate to consider the grounds of appeal relied upon by the mother.
The grounds of appeal
24.The thrust of the challenge to her Honour's decision, and certainly the challenge which assumes most interest, appears to be that articulated in what appear for some reason to be two grounds both numbered 3 appearing on Appeal Book page 3. It is instructive to approach the issue via the passage from Clemett to which I referred a few moments ago, there being no suggestion, and sensibly so, that it is other than the most relevant statement of principle.
25.Turning then to the consider the challenges which have been raised in the light of criteria as they might be thought to be discussed in Clemett, the following seems to me to emerge: there is no question that the trial Judge approached the issue on the basis of the welfare of the children.
26.In Clemett it was suggested to be especially desirable that the frequency of any changes in the custodial arrangements relating to the children should be limited as much as possible. In the context of this case to grant a stay, subject to what this court might do if it were invited to re-exercise the trial Judge's discretion on that limited issue would mean that, the children would remain in primary residence where they have been for what is now almost three years and in the primary care of their mother.
27.The trial Judge's orders clearly reveal that notwithstanding her various criticisms of the mother as detailed in her substantive judgment, she concluded that at least until 2009 the children's best interests would be served by the mother being their primary carer. The inconvenience and difficulty associated with the father spending time with the children if the orders were stayed would, subject to the terms of any re-exercise of discretion, either by this court or by a Judge at first instance, continue in large measure, that is, the father would be faced with the prospect of substantial travel to spend time with his children, albeit it would appear that he would be spending such time with the children on a significantly different qualitative basis to that which had applied in the past.
28.If the appeal is dismissed and the stay remains refused, on the one hand the father potentially would see the children without the travel and other inconvenience associated with his doing so under the current regime and, as the trial Judge said, it would be in circumstances more conducive to the relationship of the father and the children than the motel or similar accommodation which has to date been utilised for that purpose.
29.Conversely, there is no question that the mother would have to make a very substantial adjustment, both in terms of her support network, her arrangements for the children, financial and other issues, in relocating them to Sydney. If the appeal is successful, there is the prospect that the mother's move to Sydney would be reversed and the children would have yet another move.
30.Although it is perhaps oversimplifying matters to some extent, it can, in my view thus be suggested that to refuse the stay has the potential for two moves for the children, one to come to Sydney, the other back to Geelong, whereas granting the stay has the prospect of one move for the children at most, that being the move to Sydney if the mother's appeal against the substantive parenting orders is unsuccessful.
31.To my mind that is a significant factor, but it is rendered, in my view, the more significant by virtue of the particular and very carefully graduated regime of orders which the trial Judge made in this case. I referred earlier to the trial Judge's intention that the mother be the children's primary carer until 2009. Without going to them in detail, it is apparent from the terms of order 18 that her Honour envisaged a graduated increase in the time the children would spend with their father and the delayed commencement of that regime. On balance, in my view, subject to what follows, it cannot be successfully that this factor other than favours the mother, and significantly so.
32.In Clemett the Full Court referred to the appearance of substantial grounds for the appeal. For my part I perceive there to be no suggestion by either Counsel for the father or for the ICL that this appeal is other than apparently based on substantial grounds.
33.It cannot be suggested that the appeal is a mere delaying tactic. It was filed within time. An application was made to expedite the appeal. The appellant has been diligent in preparing this appeal for hearing within an accelerated time frame. The appeal can be dealt with within a reasonable time and I choose my words carefully in relation to that for reasons which I indicated earlier. It is inconceivable that the Full Court would delay the delivery of judgment in this matter, given its history of expedition. To do so, with respect to the Full Court that hears the substantive appeal, would make something of a mockery of the expedition which this case has to date received within the Full Court.
34.Perhaps the most significant matter requiring consideration is the reference in the judgment in Clemett to the present circumstances of the children being "satisfactory". As Counsel for the father reminded us, the trial Judge used that very term in the passage of her judgment to which reference was earlier made when reviewing the trial Judge's reasons for judgment. It is almost axiomatic that in the circumstances of this case, having considered a change with the implications which the trial Judge's ordered had for the mother, she must have been satisfied that the current arrangements were less than satisfactory. There is no question that such was her Honour's view when one reads her reasons for judgment in the substantive parenting proceedings.
35.There is, I think, however a distinction to be drawn between satisfactory in the sense of less than ideal, which was clearly the situation in this case on the one hand and unsatisfactory in the sense of involving children in the risk of harm or abuse, if the orders of the trial Judge are not implemented. It has fairly been conceded by Counsel for the father that this case does not fall into that second category.
36.As her Honour's reasons for judgment in relation to the order giving rise to this appeal, and her reasons in the substantive parenting proceedings make clear, there were numerous countervailing factors with which she had to grapple in the exercise of her discretion. It could be suggested that with one parent living in Sydney and for good reason wanting to stay there, the other living in Geelong and for good reason wanting to stay there, there may never have been a "satisfactory" outcome in the strict sense of that term.
37.For my part, whilst accepting the force of the submissions of Counsel for the father, I would not conclude that the children remaining with their mother in Geelong pending the hearing of the appeal would be unsatisfactory in the relevant sense or so unsatisfactory as to be a significant matter in the exercise of discretion with respect to a stay. The stay would be for a short period, if there is one. Short is a relative concept and in that context it seems to me the relativities are the period during which the children have lived with their mother in Geelong, which is now approaching three years or the totality of the short life of the second child, as opposed to the period before a decision in relation to the substantive appeal is likely to be given which realistically is three to four months.
38.In my view, as matters now stand, and they are materially different in relation to when the appeal will be heard than they were when the trial Judge dealt with this application, on balance it cannot now be concluded that to refuse a stay of those parts of the trial Judge's orders which oblige the mother to relocate the children's principal place of residence to Sydney would be an appropriate exercise in discretion. For the sake of three or four months to change what has been for almost three years, with the implications to which her Honour referred, does, in my view, with respect to her Honour, and I stress that the circumstances which present themselves to us are materially different which applied when her Honour decided this issue, entitle the mother to success in the appeal essentially in reliance upon the matters agitated in and in support of the two number grounds 3 in her notice of appeal.
39.For those reasons I would allow the appeal.
Thackray J
40.I also agree with his Honour and would also allow the appeal.
Mushin J
41.I agree with the reasons given by the presiding Judge and I too would allow the appeal.
I certify that the preceding forty one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 25 July 2007
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