Sanders & Sanders (No 3)
[2022] FedCFamC1F 335
Federal Circuit and Family Court of Australia
(DIVISION 1)
Sanders & Sanders (No 3) [2022] FedCFamC1F 335
File number(s): SYC 7660 of 2020 Judgment of: CHRISTIE J Date of judgment: 16 May 2022 Catchwords: FAMILY LAW – APPLICATION FOR STAY PENDING APPEAL – Financial and parenting orders – where the father asserts the children are at risk of harm in the mother’s care – where the objective evidence does not establish the mother poses a risk of harm – Where the Notice of Appeal does not contain any grounds which deal with the financial matter – where the parenting appeal would not be nugatory – where the timely implementation of the final orders is in the children’s best interests – application dismissed – mother’s costs application granted Legislation: Evidence Act 1995 (Cth) s 138
Family Law Act 1975 (Cth) ss 60B, 75(2), 69ZW
Federal Circuit and Family Court of Australia (Family Law) Rules 2021, Sch. 3
Mental Health Act 2007 (NSW) s 22
Surveillance Devices Act 2007 (NSW) ss 7, 11
Cases cited: Callahan & Callahan [2014] FCCA 2930
Clemett & Clemett (1981) FLC 91- 013
CSN v JBN (1998) FLC 92 – 833
Masri & Masri [2017] FamCA 539
Sanders & Sanders (1976) FLC 90 – 078
Division: Division 1 First Instance Number of paragraphs: 81 Date of hearing: 16 May 2022 Place: Sydney Applicant: Litigant in person Solicitor for the Respondent: Ms Middlin, Minors Family Law Solicitor for the Independent Children's Lawyer: Ms Jenkins, Russell Kennedy Lawyers ORDERS
SYC 7660 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SANDERS
Applicant
AND: MS SANDERS
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CHRISTIE J
DATE OF ORDER:
16 May 2022
THE COURT ORDERS THAT:
1.The applicant’s stay application is refused.
2.The applicant pay the respondent’s costs of and incidental to the stay application in the sum of $4,590.48 within 28 days.
3.The applicant file a Response to the respondent’s costs application filed 5 May 2022, an affidavit and Financial Statement within 14 days.
4.The applicant’s costs application filed 5 May 2022 be adjourned to a date to be advised after the applicant’s appeal is finalised.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sanders & Sanders has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CHRISTIE J:
On 4 May 2022 Ms Sanders (“the father”) applied for a stay of the final orders concerning parenting and property which I made on 7 April 2022 (“the final orders”).
Ms Sanders (“the mother”) opposes the making of an order staying the operation of the final orders.
The Independent Children’s Lawyer (“the ICL”), appropriately, does not ask to be heard in respect of the financial matter but opposes the granting of a stay in respect of the parenting matter.
Background
On 7 April 2022 I made final orders concerning the children X (born 2009) (known as “X”) and Y (born 2010) (“Y”) (collectively referred to as “the children”). Those orders provided for the children to live with their mother and, after three months of no time, spend time with their father (initially supervised).
The history of parenting before and after separation is set out in detail in the reasons for judgment dated 7 April 2022 (“reasons for judgment”).
At the time of making the final orders it was not anticipated that the transition of the children from the care of the mother to the care of the father would be straightforward.
On 7 April 2022 the children were brought to the Sydney Registry of the Federal Circuit and Family Court of Australia (Division 1) (“the Court”) as ordered on 4 April 2022. They met with a Child Court Expert and the ICL and left the Court with their mother.
The evidence suggests that on 8 April 2022 the children had a session with the family therapist Ms M (“the family therapist” or “Ms M”).
On 14 April 2022 the mother’s application for a recovery order came before the Court. The father was represented. I made a recovery order to lie in the Registry of the Court.
Procedural issues
The father’s application for a stay was filed on 4 May 2022.
The mother filed a response on 12 May 2022.
I made an order under s 69ZW of the Family Law Act 1975 (Cth) (“the Act”) on the first day the stay application was received namely 4 May 2022. I did so in order to ensure that the Court had available to it all of the objective evidence which might be available about the way in which the final orders were impacting upon the children. I received material from the police on 6 May 2022 and made an order releasing that material to the parties on even date. I received material from U Hospital (“the hospital”) on 10 May 2022 and released that material to the parties on 11 May 2022. I received material from the Department of Communities and Justice (“the DCJ”) on 12 May 2022 and released that material to the parties on even date.
I had previously made an order under s 69ZW of the Act in this matter (in the context of the mother’s recovery order application) on 14 April 2022 to the hospital. That material was received in chambers on 14 April 2022 and released to the parties on 27 April 2022.
The matter was listed before me for determination of the stay application on 13 May 2022. However, the matter was adjourned to 16 May 2022 to allow time for the parties to view material produced under s 69ZW of the Act by the DCJ, the hospital and NSW Police (“the police”) having regard to its receipt on the afternoon of 12 May 2022.
It was the father who sought the adjournment for the purpose of being able to read the material and, given he was the applicant for the stay, the adjournment was granted. I have had regard to the whole of the material returned under the s 69ZW order when determining this stay application.
When the matter was before me on 13 May 2022 the ICL raised the fact that the father’s affidavit material, although not his application, now raised an issue about whether or not the father was making an application for the ICL to be discharged. Following discussions on 13 May 2022 the father confirmed that any application for discharge of the ICL would be made after the Court had heard his application for a stay.
Accordingly when the matter came before me today, I had the following material before me:
On behalf of the father:
(a)An Application in a Proceeding seeking a stay filed 4 May 2022;
(b)An affidavit of the father filed 4 May 2022; and
(c)During submissions the father brought to the Courts’ attention individual pages within the s 69ZW material to which earlier reference has been made – I have read and considered those documents.
The respondent had before the Court:
(a)A Response to an Application in a Proceeding filed 12 May 2022;
(b)An affidavit of the mother filed 12 May 2022;
(c)A Financial Statement of the father filed 27 January 2022; and
(d)A tender bundle (which became exhibit 1). In addition, the mother tendered into evidence specific pages within the s 69ZW material (which became exhibit 2).
The ICL referred to the material relied on by the parties and herself tendered an exhibit bundle which became exhibit 3.
The law: Stay of orders pending appeal
On 4 May 2022 the father filed a Notice of Appeal appealing all the orders (property and parenting) made on 7 April 2022.
The grounds of appeal include:
(a)Failure to consider relevant evidence (Grounds 1 and 4);
(b)Failure to give appropriate weight to evidence (Grounds 2 and 3);
(c)Failure to consider a matter which the Act requires be considered (Ground 2); and
(d)Failure to give adequate reasons (Ground 5).
None of the proposed grounds of appeal deal with the alleged error in the financial aspect of the matter.
Separate considerations apply depending upon whether the stay is sought in respect of parenting orders or financial orders, although some of the principles which apply are common to both parenting and financial matters.
Ordinarily the party in whose favour orders have been made is entitled to the judgment on the basis that, until set aside, the orders are valid and operable.
The power to order a stay is a discretionary one.
In a parenting matter the Court would consider whether it is appropriate for there to be further changes to the children’s arrangement pending the appeal being heard: Sanders & Sanders (1976) FLC 90 - 078; Clemett & Clemett (1981) FLC 91-013; CSN v JBN (1998) FLC 92-833.
Preliminary Issue: the evidence
In the father’s application he sought to rely upon material which are audio recordings. Those are a recording taken 8 April 2022, another recording taken 8 April 2022, a recording said to be taken February 2021 and another recording said to be taken February 2021. These are all partial recordings rather than whole recordings. These all appear to be recordings taken by the children and provided to the father. They all appear to be recordings taken by the children without the knowledge of the adult person that they were recording. The recordings of 8 April 2022 are recording of the children’s sessions with Ms M, family therapist. The recording dated February 2021 is a recording by the children of their interactions with the ICL.
The mother objected to me receiving into the evidence those recordings on the basis that they fell foul of s 138 of the Evidence Act 1995 (Cth) (“the Evidence Act”).
Section 138 of the Evidence Act provides:
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject‑matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
Section 7 of the Surveillance Devices Act 2007 (NSW) (“the Surveillance Devices Act”) provides a prohibition on the installation, use and maintenance of a listening device:
(1)A person must not knowingly install, use or cause to be used or maintain a listening device –
(a) to overhear, record, monitor or listen to a private conversation to which the person is not a party, or
(b) to record a private conversation to which the person is a party.
A mobile phone is a recording device, it is not plain from the evidence what type of recording device was used in this case but it is clear that a recording device was used. It seems plain and the father conceded that these recording were made without the knowledge and consent of the persons who were recorded. Section 11 of the Surveillance Devices Act provides that:
(1)A person must not publish, or communicate to any person, a private conversation or a record of the carrying out of an activity, or a report of a private conversation or carry on of an activity, that has come to the person’s knowledge as a direct or indirect result of the use of a listening device, an optical surveillance device or a tracking device in contravention of provision of this Part.
On balance it appears that the recordings are unlawful where neither Ms M nor the ICL were aware they were being recorded: Callahan & Callahan [2014] FCCA 2930; Masri & Masri [2017] FamCA 539. The offence such as it is would relate both to the recording and to the father’s act in dissemination. It suggests that the evidence should be excluded. It offends against public policy to admit into evidence illegally obtained recordings between persons whose role was to assist the children in these proceedings. It is of further concern that it would appear that the father had the recording of February 2021 at the trial and did not disclose it until after final orders had been made.
I consider the recording of lawyers engaged to represent children is a serious impropriety and I am concerned that the children are said to have recorded many adults without their knowledge. Their father has known that the children were engaged in this conduct and has at least tacitly supported it. His conduct is not in his children’s best interests.
The father’s receipt of the 8 April 2022 recording was in direct violation of the orders providing that he not have communication with the children.
The father argued that the apparent relevance of the recordings should convince the Court to exercise discretion (that exists in s 138 of the Evidence Act), although the father did not use the language of s 138, to admit the evidence. I disagree. The recordings did not go to the key issues the Court was required to consider (particularly the recording of February 2021 which, if relevant, was relevant to the children’s expressed views at that time). I accept the recording from 8 April 2022 does have relevance but I am able to obtain the same evidence from other material which was before me and was not illegally or improperly obtained and in those circumstances, I decline to receive it.
The paragraphs of the affidavit and the recordings are excluded.
The ICL in this case has acted in the interests of the children in a difficult case. I do not accept that her conduct has been anything other than that of a qualified and experienced practitioner.
Consideration
Parenting
I start with a consideration of the stay as sought against the parenting orders. Having so recently determined that the children’s circumstances required urgent and timely change it is important to examine whether or not that conclusion is upset either by the appeal having been filed or by the events which have occurred post hearing.
If the evidence established that the children were at risk of self-harm (as opposed to having spoken of self-harm in a manner which the evidence suggests was designed to achieve a return to their father’s care) then I would need to seriously consider a stay.
However, I continue to have in mind the children’s views – expressed at the time of the final hearing – that they were content to be in the care of their mother unsupervised every second weekend. The children themselves, by expressing this view, acknowledged that they are not at risk in their mother’s care. They were expressing a preference – consistent with their father’s application – that they wished to live with him and spend minimal time with their mother.
I accept without reservation that the children will have experienced transition from the care of their father to care of their mother as difficult and distressing. They have ended up in the hospital twice.
The father told the Court during his submissions that he had recorded the children when they came into his care contrary to the terms of the final orders. He fails to understand how this conduct is harmful to his children.
I have taken into account the submissions that were made to me by all of the parties.
The father submitted that the orders should be stayed because:
(a)The orders require the husband to take money out of his superannuation and pay it to the wife. The husband is in error in that conclusion. The orders provided for sale in default of the husband’s capacity to make the payment required;
(b)The children have run away;
(c)The mother has asked to have them deprogrammed;
(d)The children are afraid of the mother;
(e)The children have not settled as anticipated;
(f)The children’s views are not produced by him but the language may be similar because X is clever and has lived with the father his whole life;
(g)The father submitted that the children had been abused by their mother;
(h)The children continue to be distressed by the conduct that occurred during the parties’ relationship and the Court should take that history seriously;
(i)The father acknowledged that the mother had an “army” of supporters and that she requires that assistance and if it works it is in the children’s interests; and
(j)It is inappropriate to have regard to Dr O’s views as he was misinformed.
The mother submitted that I should dismiss the application because of the following factors:
(a)There have been teething issues but the mother has worked closely with the DCJ;
(b)The mother has accessed services which are ongoing;
(c)The difficulties which have been encountered were anticipated;
(d)From 27 April 2022 there has been a considerable improvement – the children get into the car with the mother, the children are eating, the children have not run away, there is no third-party present, the children are attending school;
(e)The school have told the mother they have seen an improvement in Y since he came into the mother’s care;
(f)DCJ have assessed it is safe for the children to be in the mother’s care; and
(g)The children have told outsiders they are not scared.
The ICL focused on the objective material to make her submissions and she submitted:
(a)The children have been highly stressed and distressed since the making of the final orders;
(b)The children ran away eight times (as per police records) prior to early 2022;
(c)The period of unrest has been managed by the mother, hospital and the DCJ;
(d)The father does not talk in his affidavit material about his first hand observations of the children during his encounters with them post orders;
(e)X’s two occasions of self-harm and the risk of self-harm going forward are serious considerations but must be weighed against the evidence which shows that children appear to be safe and supported;
(f)U Hospital were required to consider the children’s wellbeing including self-harm or suicidal ideation and consistently concluded that the children were safe; and
(g)X’s email to the ICL dated 11 May 2022 needs to be understood for the way in which it demonstrates the themes in the case to date: allegiance to the father, no direct evidence of thoughts of self-harm and involvement in the proceedings by the father including adoption of his themes of lying and misleading.
I understand the position to be as set out in the material returned under s 69ZW of the Act from U Hospital and the DCJ. Namely that orders were made on 7 April 2022. At 8.30 am on a date in early 2022, the children left the mother’s residence and went to the father’s residence. He did not open the door. The mother attended and retrieved the children. Police records indicate that the mother and children attended family therapy and went to the zoo.
Around four days later, the children again ran away from the mother’s residence and walked to the father’s residence. The father did not let them in and the children knocked and kicked the front door for a period of one and a half hours. The father contacted the police. The children contacted the ICL. The children were at the father’s home. The police attended at 5.35 pm to perform a welfare check. The father told the police that X had had a belt around his neck. The police recorded the actions of X were an act of distress and no concerns were held for his immediate welfare with X claiming he did not want to hurt himself. Police told the father that the children could stay overnight but needed to be returned to the mother the next day.
The children attended at U Hospital in early 2022. They were interviewed by the DCJ who expressed concern for the children due to their level of distress. The DCJ worked with both of the parents and formed a plan which would result in the children being released to family friends. The children’s family therapist Ms M was contacted by the hospital. The hospital records record her view as being that the facts and circumstances of this case constitute one of the “worst cases of parental alienation” that she has seen. She told the hospital that the father has a close and manipulative relationship with the children.
The mother met with the DCJ on 14 April 2022. The notes of the DCJ record:
[Y] has been violent with mum. [Y] went up and down. [Y] had a great day with friends’ day before left. [X] seems distressed.
It is plain that the paternal grandparents have made notifications to the DCJ since the making of the final orders containing some of the complaints that echo those raised by the father in the proceedings.
The children were released from the hospital back into the care of the mother with the assistance of her friends. A short time later, the police received a report from a family friend that as few days earlier, the father had contacted her and was angry. The police documents record:
…that she [the reporter] had relayed something to the mother. She told the police that the father had said to her “be careful what you say to people… your name is appearing heavily in court documents”. The person making the police report indicated that the father repeated these sentiments and the person was advised about the method for obtaining a personal violence order.
In early 2022 the children contacted their paternal grandparents talking about the fact that they would “rather be dead than back with her [the mother]”. The police spoke to one of the children who said he did not have thoughts of killing himself he just did not want to go back to the mother.
On the following day, at 8.30 am the mother reported that the children had run away and had been missing for approximately 30 minutes. The police located the children walking towards their father’s house. The children said to the police words to the effect that they did not want to go to mum’s house and just wanted to see their father. The police returned them to their mother. At 7.00 pm that evening police were contacted to conduct a mental health check on the children. Police spoke to the children again at U Hospital who said they would rather die than go back to their mothers’. X is reported to have taken off his jumper and wrapped it around his neck in an attempt to harm himself. Y said if he had a gun he would shoot himself. The children were admitted to hospital under s 22 of the Mental Health Act 2007 (NSW). The father left the hospital while the police interviewed the children and the mother came into the hospital. The children were left in her care when the police left. The children remained in the hospital. A psychologist, Ms OO, found that the children were not a risk of harm to themselves. She did not find that their suicidal ideation was genuine but a “strain of the situation”.
The children’s conduct in running away, expressing displeasure with their living situation and wishing to return to the father is concerning but entirely anticipated.
The children had a meeting with the DCJ. The DCJ made plans with the boys to stay with their mother full time and a safety plan. The plan was to discharge the children into the mother’s. The records record that the DCJ had met with the father earlier in the week and shared concerns about him not encouraging the boys to settle with their mother, encouraging the boys to run away from their mother and the father disclosed to the DCJ that he was having ongoing contact with the children. The DCJ recorded that they did not hold concerns about the mother’s ability to care for the children but remained concerned about the children’s behaviour.
The safety plan for the children was implemented in the same month in early 2022. Upon returning home, Y demanded his phone from his mother. When the mother said no Y said “I’m going to kill you. I’m going to stab you and enjoy watching you die”. The children locked the mother out of the house. Y demanded his phone back and slapped his mother multiple times across the face. Y went outside and picked up a garden saw and said “I’m going to use this on you”. The mother replied “no you won’t you’re a good boy”. Y discarded the saw, went to the kitchen and grabbed a knife, pointed it at the mother and said “I’m going to stab you if you don’t give me my phone back”. The mother contacted a friend.
Y grabbed his phone from the mother. Y went to his room and the mother locked the door. Y was in his room texting people. The mother told the police that she didn’t hold any fears but she feels helpless with the children not wanting to be there. The police hold views that the children will continue this behaviour until they get their way. Y was interviewed by police and made full admissions. He states he never meant to harm his mother, only to intimidate her to get his phone back. Police record that Y was unable to understand the severity of his actions but he knew it was wrong.
In early 2022 the objective evidence suggests there had been a shift in the children’s settled state. A caseworker informed the father that she had seen the boys and that:
...[the] boys are very settled, the boys went to school, they were having dinner, caseworker checked individually and no immediate concerns for them.
It is important to understand the role of the DCJ, the DCJ have to have respect for existence of a court order but their primary focus is on whether or not the children are safe from harm. They do not, in circumstances where they see that the children are at risk of harm, have to abide by the orders of this Court. The DCJ can bring an application to this Court themselves, they have not done so. That an objective case worker, whose only role is to check whether the children are well, had no immediate concerns for the children is a powerful piece of evidence. The DCJ records suggest that X is well supported by the school counsellor. The note suggests that the school counsellor may be assisted by being provided with a copy of the reasons for judgment from 7 April 2022. The material produced by the DCJ indicates that it was the father who took the children to the hospital and met the police at the hospital in early 2022. Therefore, for the purpose of the final orders, at this stage should the father comply with the orders, the three consecutive months period would commence on 27 April 2022. Unless there is further evidence to suggest the father has not been compliant with the court orders after that date.
I place weight on the assessment of the hospital, as I was taken to by the ICL, as the hospital were required to independently assess, that is independent of either parent, the children’s mental health while they remained inpatients at that facility. They were required to assess whether or not the children were at risk of harm to themselves. I am also conscious that the children themselves have conceded that they have said and done certain things since the final orders were made in an effort to register their disapproval of a regime which separates them from their father.
The notes for mid-2022 from the DCJ record the continuing improvement:
…the boys went to school. There has been no issues at all. No carer slept over. Concerns about contact with Dad. Spoke to FFT and that worker will be in contact soon.
The DCJ records record a home visit to the home of the mother in mid-2022. The records read as follows:
1. CW [caseworker] checked in with [Ms Sanders] around how she was feeling and how things have been and [Ms Sanders] mentioned that things have been good that they had no carers staying over.
1. [Ms Sanders] mentioned that she is struggling with setting boundaries for [Y] and during the session of FFT when [Mr RR] came over [Y] was asking for his friend [SS] to come and he was very pushy and she mentioned that she was talking back to [Y] and [Mr RR] mentioned that something regarding [Y] and [Ms Sanders’] discussion and [Ms Sanders] felt that [Mr RR] could have supported her around how to set appropriate boundaries.
2. CW mentioned that she could she would raise it with [Mr RR] and that she could speak to her psychologist about this.
3. CW then went to speak to [X] who said he was fine, and when CW enquired what does fine look like, he said the usual. CW unpacked it and asked does he still feel unsafe with mum ? and [X] mentioned no, but misses dad.
4. CW observed [X] talking to mum about making his something for school and [X] was becoming animated and responding positively to Mum and Mum was interacting and telling CW about [X’s] Lego and his room and [X] smiling showed CW around his room. [X] mentioned he does not feel scared staying with mum and has people he could talk to. [X] just wanted to speak to less people about the same issues and wondered if we can limit the amount of professionals in his life. CW mentioned she could look into it.
5. CW then went to speak to [Y] who was on the computer. [Y] was very animated and told CW that he will get 25 [dollars] from mum for helping with dished and washing cars as part of his chores. [Y] said he had no worried and that mum let him go on more tracks. CW confirmed that both [Y] and [X] can access their phone in emergency and they both said yes and have people in school they could talk to.
(As per the original)
The record of this visit provides the Court with a sound basis for concluding, that which was expected by the experts, has occurred. The children settling with their mother would take time. The children would obviously miss their father. For the mother to be dealing with parenting issues such as setting boundaries is exactly what ought to be happening. That she requires assistance of others to do that is again, as anticipated. Most importantly, that note reveals that the children feel safe. The father has difficulty in accepting that the children feel safe. The father should be comforted by the fact that the children have told other people that they feel safe.
The father submitted that the mother had abused the children in the post separation period. I asked him to take me to the evidence that demonstrated that the mother had acted abusively in the period since the final orders had been made. The father took the Court to material from U Hospital (X’s hospital notes, p. 43). I do not accept that they support the proposition that X has been abused by the mother since separation.
The father contended that what he perceived to be “lies” the mother has told the hospital constitute psychological abuse. I disagree.
Financial
None of the appeal grounds mention error as regards the final orders concerning financial matters. It is only because the father’s Notice of Appeal indicates that he intends to appeal against all of the final orders that it is apparent that there is an appeal against the financial orders. In addition, in the orders which the father seeks on appeal, he seeks orders that the Federal Circuit and Family Court of Australia (Division 1) exercising appellate jurisdiction (“the Appeal Court”) re-exercise and seeks specific orders for property adjustment.
Given no appeal grounds are identified it is difficult to develop an appreciation of the merits or otherwise of the father’s appeal against the financial orders.
In his affidavit the father contends that the reasons for judgment and resulting final orders did not properly appreciate his future financial needs. To that extent, if there were an appeal ground which argues that there had been a failure to take into account the husband’s “future needs” (by which I understand the father is referring to any adjustment which may be made by reason of s 75(2) of the Act) that would be answered by [216] and [217] of the 7 April 2022 reasons for judgment.
In submissions the father contended that the orders required him to pay the wife monies from his superannuation funds. I disagree. The orders contain a superannuation splitting order – but they do so because both parties sought one. I made an order that was contained in the application of each party. Perhaps the husband’s submission was to the effect that he does not have cash or access to borrowings sufficient to make a payment in the amount I ordered. It was not clear. That may be the case. However, the orders provided a default sale provision in the event the husband is unable to raise the funds necessary to pay out the wife by way of borrowings.
Before me today the husband was not represented. He did not articulate the fact that if the sale were required by the default provision then his appeal against the property orders may be rendered nugatory. The mere fact that the husband did not raise this issue does not mean that I should not consider it and I have. If the husband had filed any grounds of appeal relating to property or there were any matters before me which suggested his appeal against the property orders may have merit then I may have had to consider granting a stay or granting a stay on terms – but as presently drafted no basis for an appeal is identified and it follows that the application for a stay against the financial orders should be dismissed.
Conclusions
The Stay Application
A stay is not granted lightly. The appellant has no automatic right to expect that the Court will grant a stay. The respondent is, as a general rule, entitled to the fruits of her judgment.
Whilst it is sometimes appropriate to maintain the “status quo” parenting arrangement pending appeal, that is not the case here where the restoration of the relationship between one parent and the children may be effected by any further delay in implementation of the final orders.
I have concluded that as presently drafted the appeal seems to be based on discretionary matters and is not assessed as having strong prospects (parenting or financial).
The granting (or refusal) of a stay is not a parenting order and accordingly the paramountcy principle is not in play. However, the children’s best interests remain a highly relevant consideration. I do not accept that the evidence before me would support a conclusion that granting the stay would function in the best interests of the children given that I must take a view, informed by the expert evidence and the final orders, which appreciates not just their short term expressed views but their medium and long term welfare.
An appeal will not be heard within the three months that the father is injuncted from seeing the children.
I accept that it is desirable that there not be multiple movements of children and I place significant weight on the facts that they now appeared to have settled as was the hope expressed in the reasons for judgment.
Absent risk the ideal – embodied in the objects and principles of the Act – is that children should know and be cared for by both parents and both parents should be involved in the lives of the children to the maximum extent consistent with their best interests: s 60B(1)(a) of the Act. That was the goal of the final orders - to restore the children’s relationship with their mother to ensure they had a relationship with both parents. For those reasons the orders will not be stayed.
Costs
The mother has made an application for costs. The general rule is that each party pays his or her own costs. There may be a departure from the usual rule if there are justifying circumstances. The mother sought costs at scale in the sum of $4,590.48 in accordance of Sch.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
The father has been wholly unsuccessful in his application for a stay. This is the second time the matter has been back before the court since the making of final orders. The father’s conduct (failure to comply with orders) is a relevant consideration. The father is within his rights to appeal and to seek a stay. However, where he is unsuccessful and in a stronger financial position than the mother (as per my findings at trial) it is appropriate that he pay the mother’s costs of the application on a party/party basis in a fixed sum namely $4,590.48.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 17 May 2022
0
3
0