Searle and Mellor
[2016] FCCA 2698
•20 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SEARLE & MELLOR | [2016] FCCA 2698 |
| Catchwords: FAMILY LAW – Interim parenting hearing – Orders made – Mother’s stay application pending appeal – Stay of court’s interim orders made subject to a condition providing for children’s time with father to be supervised by his current partner. |
| Cases cited: Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106 Clemett & Clemett (1981) FLC 91-013 EJK v TSL(No 2) [2006] FamCA 806 K v B [2006] FamCA 848 Windsor & Kava [2015] FamCA 668 |
| Applicant: | MS SEARLE |
| Respondent: | MR MELLOR |
| File Number: | PAC 1613 of 2014 |
| Judgment of: | Judge Newbrun |
| Hearing date: | 26 August 2016 |
| Date of Last Submission: | 12 October 2016 |
| Delivered at: | Parramatta |
| Delivered on: | 20 October 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Farah Lawyers, Solicitors & Barristers |
| Solicitors for the Respondent: | CBD Legal |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW Parramatta Family Law |
ORDERS
The Court’s interim orders of 17 May 2016 are stayed, pending the mother’s hearing of her appeal to the Family Court of Australia on 17 November 2016, on the condition that the children X born (omitted) 2004 and Y born (omitted) 2009 (“the children”) spend time with the father, supervised by and in the presence of his current partner Ms A, each Saturday from 2:00pm until 4:00pm, such time commencing on Saturday, 22 October 2016.
The changeover for the children’s time with the father, referred to in order 1, shall occur outside the ticket office at (omitted) Railway Station.
IT IS NOTED that publication of this judgment under the pseudonym Searle & Mellor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 1613 of 2014
| MS SEARLE |
Applicant
And
| MR MELLOR |
Respondent
REASONS FOR JUDGMENT
The mother has made an application for a stay pending appeal of the Court’s interim parenting orders of 17 May 2016.
Those orders provided, inter alia, that two (2) young children of the relationship, Y aged almost 7 years, and X, aged almost 12 years, could spend unsupervised time with the father from 11:00am to 5:00pm on fortnightly Saturdays.
The mother did not comply with the Court’s orders of 17 May 2016, which led to the father filing a Contravention Application on 8 June 2016. That Contravention Application is yet to be determined by the Court.
The mother relies upon her Application in a Case filed 15 June 2016 and supporting affidavit filed on the same date. The grounds of appeal are attached to the Notice of Appeal, which was filed on 10 June 2016.
The mother filed written submissions in respect to the stay application on 4 September 2016. The father filed written submissions similarly dated 22 September 2016.
Chronology
On 23 September 2014, by consent, court orders were made providing for the children to live with the mother; the father was to submit himself to urine analysis testing; both parties shall proceed to make contact and attend the intake procedures at (omitted) Contact Centre for the purposes of the children spending supervised time with the father; the father to be responsible for any fees relating to the contact centre.
On 6 June 2015, the father began to spend supervised time with the children at a contact centre, once per fortnight.
October 2015 - mother allows father to spend some unsupervised time with the children.
2015 summer school holidays - father spends time with the children in the presence of the parties’ daughter Z.
Relevant Legal Principles
In Windsor & Kava [2015] FamCA 668 Foster J stated:
[26] The law as to the general principles applicable to a stay pending appeal is well settled.
[27] In Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106, the Full Court said at [17]-[18]:
This is an appeal from a discretionary judgment. There are well established principles on the limits on interference by an appellate court with such a judgment (see House v The King (1936) HCA 40, Gronow v Gronow (1979) HCA 63 at paragraph 18.
The principles to be applied in determining an application for stay of orders, both in the general law and in respect of parenting proceedings are also well known. See The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (No 1) (1986) HCA 13, Alexander v Cambridge Credit Corporation (1985) 2NSWLR 685, Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited (1986) HCA 84, Clemett and Clemett (1981) FLC 91-013, JRN and KEN v IEG and BLG (1998) 72 ALJR 1329.
[28] The Full Court then said at [18]:
The authorities stress the discretionary nature of the application which should be determined on its merits. The principles relevant to this matter include the following:
The onus to establish a proper basis for the stay is on the applicant the stay. However, it is not necessary for the applicant to demonstrate any special or exceptional circumstances;
A person who has obtained a judgment is entitled to the benefit of that judgment;
A person who has obtained a judgment is entitled to presume the judgment is correct;
The mere filing of an appeal is insufficient to grant a stay;
The bona fides of the applicant;
A stay may be granted on terms that are fair to all parties. This may involve a court weighing the balance of convenience and the competing rights of the parties;
A weighing of the risk that an appeal may be rendered nugatory if a stay is not granted. This will be a substantial factor in determining whether it will be appropriate to grant a stay;
Some preliminary assessment of the strength of the proposed appeal whether the appellant has an arguable case;
The desirability of limiting the frequency of any change in a child’s living arrangements;
The period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and
The best interests of the child, the subject of the proceedings are a significant consideration.
[29] The Full Court at [36] referred to K & B (2006) FamCA 848, stating:
The Full Court dismissed a stay appeal where it found that the arrangements which existed for the particular child at the time of trial were not satisfactory and, therefore, the maintenance of the status quo, pending the determination of the substantive appeal, was not in the child’s best interests.
[30] The Full Court at [32] explained why, in a parenting appeal, the granting of a stay to maintain a status quo is not always appropriate or the best interests of a child may dictate refusal of a stay as appropriate. Their Honours said:
The granting or refusal of a stay involves an exercise of discretion by a trial judge. Whilst such discretion must be exercised judicially in cases involving children, we accept that from time to time circumstances in existence at the date of the orders or which occur from the date of the orders until the hearing of a stay application, may be very relevant matters to be considered in the exercise of discretion in determining whether or not to grant a stay.
The interests of children would not be promoted by an inflexible requirement or presumption in every case to maintain the status quo prior to the making of orders the subject of the stay application and to ignore unsatisfactory arrangements at the time of the orders or significant events which have occurred after the making of those orders.
[31] In Clemett and Clemett (1981) FLC 91-013, Nygh J refused the husband’s application for stay of orders pending the appeal. His Honour said at 76,175:
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 in 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 of time.
[32] In EJK v TSL (2006) FamCA 806, the Full Court had the opportunity of considering what was said by Nygh J, in Clemett (supra) in the context of the subsequent enactment of the Family Law Reform Act 1995 (Cth). The Full Court at [17] said this in relation to the principles espoused in Clemett (supra):
We accept the principles espoused are relevant to this application and the child’s best interests even if not the paramount consideration, on the facts of this case, are a significant consideration.
[33] The importance of the consequences for a child of granting or refusing of stay are well recognised. In JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332, Kirby J said:
In my opinion, some adaptation of the rules stated in the cases governing stays in this court must also occur in cases which affect significantly third parties who are not parties before the Court and, in particular, children whose welfare must always be in the mind of a court in making an order affecting their interests.
This Court now considers the factors referred to in the decision of Aldridge & Keaton (supra).
Onus to establish a proper basis for the stay is on the Applicant for the stay, however it is not necessary for the Applicant to demonstrate any special or exceptional circumstances
The Court is reasonably satisfied that the mother’s appeal is bona fide and relates to her concern as to the safety of the children.
However, the Court notes that the mother’s insistence, both at the interim hearing and in her written submissions on the stay application, that the children’s time should be formally supervised at a contact centre, appears to be at odds with the mother’s comments to the Family Report writer that she would be happy if the contact was supervised by the older sister Z (aged 18), “and believes this should happen whether it is at a Contact Centre or at another venue.”
A person who has obtained a judgment is entitled to the benefit of that judgment
The Court notes the written submission of the father that an interim hearing was conducted and evidence presented to the Court, following which the Court made interim parenting orders, acting in the best interests of the children.
A person who has obtained a judgment is entitled to presume the judgment is correct
The Court has taken this principle into account.
The mere filing of an appeal is insufficient to grant a stay
The Court has taken this principle into account.
The bona fides of the Applicant
This principle has been discussed above.
A stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties
The Court has already alluded to the mother’s concerns that if the Court’s orders of 17 May 2016 are complied with, the children will be placed at an unacceptable risk of harm in the unsupervised care of the father. In this context, the mother refers to, inter alia, mental health concerns of the father, and historical family violence.
The mother submits that she is agreeable to the children resuming supervised time with the father during the period of any stay pending an appeal and refers to the supervisory services provided by (omitted), Connecting Families and Phoenix Rising; she submits that “such services can operate and time commence immediately upon such services accepting the family upon assessment.”
The father, for his part, submits that if the stay application is granted by the Court, noting that the father’s supervised time at the previous contact centre was brought to an end by that contact centre in February 2016, the father will have to wait some six (6) months to achieve admission into another contact centre, resulting in there being a further significant period in which the children would not have spent time with him. The net result of this significant period in which the children would not have spent time with the father since February 2016, is that the children’s relationship with the father will evaporate. The father submits that he cannot afford “a private supervisor,” from which the Court infers he is referring to such organisations as (omitted), Connecting Families and Phoenix Rising.
At a mention of these stay proceedings on 12 October 2016, the Court invited submissions from the parties as to whether, as a possible condition of the Court granting a stay of its orders of 17 May 2016, the father’s current partner, Ms A (aged 32 years), should act as a supervisor of the children’s time with the father, pending the appeal.
The father submitted that his current partner could appropriately be a supervisor of the children’s time with the father and he caused an affidavit of his current partner, affirmed 13 October 2016, to be filed and served. That affidavit states, inter-alia, the current partner’s willingness to so supervise the children and contained an undertaking to be present with them and the father at all times they were together, and to report any relative concern in that context.
The mother submitted, inter alia, that:
a)she objected to the father’s current partner acting as a supervisor, as she did not believe the father’s current partner would be appropriately protective of the children during such supervised time;
b)the mother did not know the current partner; and
c)the mother had alleged illicit drug use by the father.
In response, the father submitted, inter alia, that the allegations of the father’s drug use had been addressed by the Court in its reasons of 17 May 2016, and whilst conceding that the father’s current partner did not presently know the children, he submitted that this was not an important factor. There is force in these submissions.
The Court is of the view that a condition of a stay pending appeal, providing for the children to spend, on a weekly basis (noting the imminent appeal on 17 November 2016), two (2) hours of daytime time with the father in the presence of, and supervised by, his current partner, would provide fairness to the parties in the context of the current application for stay pending appeal.
The Court refers to its interim decision of 17 May 2016 referring to the affidavit evidence of the father’s current partner, and importantly, the fact that the Family Report writer interviewed her on 11 July 2015 and stated, at paragraph 92, inter alia:
Based in this assessment [the father’s current partner] appears to have good understanding of the importance of safety and would be an ally in keeping the children safe. She reported that she has experienced family violence in a previous relationship and would not tolerate it again.
(In this latter context, see, at paragraph 38, the Family Report writer’s reference to the interview with the father’ s current partner).
A weighing of the risk that an appeal may be rendered nugatory if a stay is not granted - this will be a substantial factor in determining whether it will be appropriate to grant a stay
The mother submits that if a stay pending appeal was denied, then a successful appeal against the interim orders of the Court would be rendered nugatory. There is force in this submission; on the one hand the Court’s interim orders provided for the children to spend unsupervised time with the father during the daytime on fortnightly Saturdays, whereas the mother’s position at the interim hearing was that the children should spend time with the father on a supervised basis at a contact centre, by reason of contended risk issues.
Some preliminary assessment of the strength of the proposed appeal - whether the Appellant has an arguable case
The mother submits that the Court, in its interim decision, did not follow the legislative pathways in relation to family violence. It was submitted that:
… it was inappropriate to make an order permitting unsupervised time, in light of the drug allegations, family violence, emotional and psychological harm to the children, at least until the matter can be resolved at a final hearing.
Regarding the submission above, as to the drug allegations against the father, the Court did address this matter in paragraphs 41, 42, 44, 46, and 70 of its interim decision. The Court noted, inter alia, the lack of particularity of the mother’s drug use allegations against the father, and the fact that the subject contact centre material over some 6 months did not disclose that the father was drug affected during his fortnightly visits with the children. This asserted failure by the Court to take into account the drug allegations would not appear to be a strong ground of appeal.
As to the mother’s assertions that the legislative pathways were not followed in relation to family violence perpetrated by the father, the Court refers, inter alia, to its judgement, under:
a)the “need to protect” primary consideration (paragraphs 44, 45, 46, 47);
b)the “family violence” additional consideration (paragraphs 70-72); and
c)the “family violence order” additional consideration (paragraph 73-74).
The disputed family violence allegations were of some antiquity. This asserted ground of appeal would not appear be to be strong, but perhaps it is arguable that insufficient weight was given to this issue by the Court.
The bias and prejudice grounds of appeal appear to lack merit.
Paragraph 13 of the “Grounds of Appeal” contends that the Court gave no weight to the recommendations of the Family Report. It is perhaps arguable that the Court gave insufficient weight to the views of the Family Report writer.
However, the Court notes that in its interim judgment, it referred to inter alia, the positive time spent by the children with the father, both on a supervised basis at the contact centre and at the other discrete times outside the contact centre, all such time occurring after the Family Report writer’s interviews and report.
Paragraph 14 contends that the Court erred in not giving weight to the subpoenaed documents. The Court did consider such documents and the Court refers to paragraphs 39 - 47 of its judgment. The Court also notes that such subpoenaed documents were of some antiquity. It is perhaps arguable the Court gave insufficient weight to the subpoenaed documents but it does not appear to be a strong ground of appeal.
The desirability of limiting the frequency of any change in a child’s living arrangements
The court’s interim orders providing for the children to spend time with the father during the daytime on alternate Saturdays would not cause any relevant change to the children’s living arrangements.
The period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of a stay for a short period of time
The Court is now informed that the appeal will be heard on 17 November 2016.
The best interests of the child subject of the proceedings are a significant consideration
The mother submits that the children should be protected through a stay pending appeal of the Court’s interim orders of 17 May 2016.
The mother submits that the Family Report writer made a recommendation for a mental health assessment of the father and that his mental health remains unknown.
The court notes that it addressed the incident at the contact centre in February 2016 in paragraph 13 of its judgment.
As to the above recommendation of the Family Report writer as to mental health assessment of the father, the Court notes its judgment referring to:
a)the father’s overall positive time spent with the children at the contact centre over an extended period (for example see paragraphs 13 and 17);
b)the affidavit evidence of the father’s new partner speaking positively of the father in various respects, including the family report writer’s positive comments in relation to the father’s new partner; and
c)the Court’s consideration of the subpoenaed material relating to an incident at the police station on 9 January 2014, involving an apparent anxiety attack by the father in the context of his separation from the mother and the children.
The father submits that the best interests of the children should be advanced by the Court ensuring that the children’s re-establishment of their relationship with the father is not placed in jeopardy by granting a stay pending appeal resulting in there being a further significant period of time in which the children do not spend time with the father. There is force to this submission. The time spent by the children with the father supervised at the contact centre went some considerable distance to re-establishing the children’s meaningful relationship with the father, however, disappointingly, that supervised time came to an end abruptly in mid-February 2016, and since that time to date, a period of almost 8 months, the children have spent no time with the father.
Take into account all the above principles, including the best interests of the children, as discussed above, the stay pending appeal should be granted on the condition that the children spend time with the father, pending the hearing of the appeal, supervised by and in the presence of his current partner, each Saturday from 2:00pm until 4:00pm, such time commencing on Saturday, 22 October 2016, with the changeover to occur outside the ticket office at (omitted) Railway Station.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Date: 20 October 2016
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