Sanders & Sanders (No 3)

Case [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).

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AGLC
Sanders & Sanders (No 3) [2022] FedCFamC1F 335
Case
[2022] FedCFamC1F 335
Decision Date

CaseChat Overview and Summary

The case of Sanders & Sanders (No 3) involved a dispute between the parents of two children, X and Y, over parenting arrangements and financial orders. The Independent Children’s Lawyer opposed a stay in respect of the parenting matter but did not wish to be heard on the financial aspect. The matter was before the Federal Circuit and Family Court of Australia, which had previously made final orders concerning the children's care and living arrangements.

The court had to decide whether to grant a stay on the final orders concerning the children's care and living arrangements and financial orders. The father had applied for a stay on the basis that the children had run away, the mother had asked for them to be deprogrammed, and they were afraid of the mother. The mother opposed the stay, arguing that there had been an improvement in the children's behaviour since the final orders were made.

The court found that the children had not been at risk of self-harm and that their views expressed at the time of the final hearing indicated that they were content to be in their mother's care unsupervised every second weekend. The court also found that the father's conduct in recording the children without their knowledge was harmful and that the evidence did not support a conclusion that granting the stay would function in the best interests of the children. The court further found that the appeal seemed to be based on discretionary matters and did not have strong prospects. The court therefore dismissed the application for a stay.

The court also considered the mother's application for costs. The court found that the mother had acted in the interests of the children and that her conduct had been that of a qualified and experienced practitioner. The court awarded the mother costs at scale in the sum of $4,590.48.

In conclusion, the court dismissed the application for a stay and awarded the mother costs. The court found that the children's best interests were best served by not staying the final orders and that the appeal seemed to be based on discretionary matters and did not have strong prospects. The court also found that the mother had acted in the interests of the children and that her conduct had been that of a qualified and experienced practitioner.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.ConclusionsThe 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.

Ratio Decidendi

Legal Principle Established

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. ConsiderationParenting 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.