Seshan and Sadasivam (No.2)

[2019] FCCA 825

FEDERAL CIRCUIT COURT OF AUSTRALIA

SESHAN & SADASIVAM (No.2) [2019] FCCA 825

Catchwords:
FAMILY LAW – Application for stay of operation of orders permitting child to travel with mother to India – relevant considerations – whether appeal would be rendered nugatory – whether proposed grounds of appeal are of merit – application refused.

Legislation:

Family Law Act 1975 (Cth), ss.64B, 65N

Family Law Rules 2004 (Cth), r.22.11

Cases cited:

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

Baghti & Baghti (No.3) (2013) FamCAFC 201

Clement & Clement (1981) FLC 91-013

Friscioni & Friscioni [2009] FamCAFC 43

K & B (2006) FLC 93-288

Kuebler & Kuebler (1978) FLC 90-434

Line & Line (1997) 21 Fam LR 2059

Seshan & Sadasivam [2019] FCCA 742
Sheldon & Weir (Stay Application) [2011] FamCAFC 5

Thomason & Malhotra [2010] FamCAFC 85

Applicant: MS SESHAN

Respondent: MR SADASIVAM

File Number: MLC 6494 of 2017

Judgment of: Judge A. Kelly

Hearing date: 29 March 2019

Date of Last Submission: 29 March 2019

Orders pronounced: 29 March 2019

Delivered at: Melbourne

Delivered on: 2 April 2019

REPRESENTATION

The Applicant: In person

Solicitor advocate for the Respondent: Mr Freeman

Solicitors for the Respondent: Resolve Conflict Family Lawyers

ORDERS

1. The application in a case filed on 28 March 2019 be refused.

IT IS NOTED that publication of this judgment under the pseudonym Seshan & Sadasivam (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6494 of 2017

MS SESHAN

Applicant

And

MR SADASIVAM

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 18 March 2019, orders were made permitting the applicant mother to travel to India for a period of some three weeks in … 2019.  The respondent father has filed a notice of appeal from those orders.  Reasons for my decision permitting such travel were given ex tempore and revised on 26 March 2019: [2019] FCCA 792. These reasons explain my decision to refuse the respondent’s application for a stay of those orders and should be read together with those ex tempore reasons.

2. By application in a case filed on 28 March 2019, the respondent seeks an order pursuant to r 22.11 of the Family Law Rules 2004 (Cth) staying the operation of the orders made on 18 March 2019. The application was supported by an affidavit sworn by the respondent father on that date. By his affidavit, the respondent father deposed to the circumstances in which he sought a stay of the orders. In substance, the respondent father deposed to the circumstances upon which he relied to contend that the applicant mother is a flight risk. He also deposes to his having not complied with the order that he supply the applicant mother with the child’s passport which, as I was told in submissions, he has instead retained at a bank in Suburb B.

3. It is well settled that a stay will neither be lightly granted nor granted as a matter of course.  The Full Court has stressed that in children’s cases the most important factor in the consideration of a stay is the rights of the child: Clement & Clement (1981) FLC 91-013 (Nygh J, Dovey and Ross - Jones JJ agreeing). However, the decision makes clear that this statement of principle had particular application respecting final parenting orders as distinct from the circumstances of the present case. Contrastingly, as the Full Court observed in Friscioni & Friscioni [2009] FamCAFC 43 at [55] it is important to consider the consequences for a child of granting or refusing a stay.

4. In K & B (2006) FLC 93-288 Warnick, May and Boland JJ considered the applicable principles and granted a stay in that application in circumstances where it was common ground that the proposed appeal was based on substantial grounds, was brought bona fide, was not merely a delaying tactic and where expedition of the appeal had been sought.  The principles endorsed in K & B have been followed repeatedly: see eg, Sheldon & Weir (Stay Application) [2011] FamCAFC 5, [14]-[15] (Bryant CJ, Finn and Ainslie-Wallace JJ), Baghti & Baghti (No.3) (2013) FamCAFC 201.

5. Earlier, in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 [18], Bryant CJ, Boland & Crisford JJ stated as follows:

   The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:

   ·    the 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;

   ·    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.

6. The order made on 18 March 2019 was an interlocutory order made in the exercise of a discretionary power conferred on the court. So too, the power conferred by r 22.11 is a statutory discretionary power. It follows that the grant or refusal of the application is a matter which turns on the exercise of that discretion and requires that consideration be given to the matters which are relied upon in support of and against the application and any other relevant considerations: Sheldon & Weir (Stay Application) [2011] FamCAFC 5, [56].

7. As the Full Court observed in Aldridge supra at [39], the application for a stay was essentially a challenge to his Honour’s exercise of discretion and the weight which had been attributed to various matters. So here.  When addressing the application made on 18 March 2019, I considered the arguments which were made in opposition to that application.  In my view, the stay application proceeds upon effectively the same grounds upon which the respondent father opposed the applicant mother’s orders permitting her to travel with the child.  I have rejected those grounds for the reasons given in my earlier decision.

8. The respondent father accepts that the filing of a notice of appeal does not stay the operation or enforcement of the order appealed from.  The stay was sought on the substantive basis that the appeal will be rendered nugatory if that stay not be granted.

9. In the present case, I accept that there has been no delay in the pursuit of this application.  I cannot decisively weigh the question whether the application is made bona fides and attach neutral weight to that consideration.  However, I also accept as an important consideration that the refusal of a stay may render the appeal nugatory in the sense that the applicant mother and child will be able to take the proposed three week trip in … 2019.  This issue notwithstanding, the case arises in the context where final parenting orders were made by consent and the mother, who has permanent Australian residency has travelled to India many times.  When those orders were made on 1 August 2018, both parties were legally represented.  The orders provided for the child to live with the mother and for a suite of orders which afforded a progressive increase in the time which the child would spend with his father.  Notations to that consent order provided that the mother might bring an application to travel overseas with consequential orders respecting the child’s passport.  They further provided that the respondent father held concerns respecting any such overseas travel.

10. An evaluation of the merits of the respondent father’s grounds of appeal is a significant consideration in the present case.  The proposed notice of appeal advances 12 grounds of appeal.

11. While the Full Court may of course take another view of the matter, I do not accept that the grounds stated in the notice of appeal are of merit.  Although no submissions were made respecting the merit of the proposed grounds of appeal, I have considered them.  It seemed to be assumed that the filing of the notice of appeal and reliance upon an argument that such appeal would be rendered nugatory would be sufficient, in and of itself to support a conclusion that a stay should be granted in the exercise of discretion concerning an order which itself turned upon the exercise of a statutory discretion.

12. As to Grounds 1, 5 and 8, on its face, the application in a case was clearly returnable on 18 March 2019 and the respondent father’s solicitors had been served with the application some six weeks before that date.  I specifically reject the contention that any adjournment was sought and do so having now reviewed the transcript of that day.  No submission was made as to the respondent father’s intention to file an answering affidavit at some future date.  The highest that any such submission might have gone was that the respondent had not filed any material at that stage, not doing so on the apparent basis that the application would be more conveniently be dealt with a matter of days before the applicant mother’s proposed departure travel date. Insofar as it is to be contended that the matter proceeded upon untested evidence, to have done so occurred in the context of the respondent father’s failure to file any answering affidavit.  If the respondent suffered any disadvantage by reason that no responding material had been filed, the loss of that opportunity was the result of the respondent’s assumption that the application would more conveniently be dealt with on 30 April 2019, only days before the proposed travel was to occur.

13. As to Grounds 2 and 5, I also reject the contention that the respondent was refused an opportunity to refer to previously filed materials.  To the contrary, the solicitor for the respondent asked that the court indulge a submission concerning the previously filed materials said to substantiate a contention that the applicant mother was a flight risk.  The submission was accepted.  In the submissions which followed it was evident that the matters upon which the respondent relied were somewhat historical.  More relevantly, those submissions were made in the context that the applicant’s submissions pointed to her changed circumstances, including her receipt of an Australian Centrelink income and the provision of public housing, which collectively supported a conclusion that her circumstances in Australia were markedly better than those which would be available to her in India.

14. As to Ground 3, I also reject the contention that there had been a failure to refer to the parties’ previously filed financial statements.  The ground appears to rest upon an unstated assumption that the court was required to trawl through the entirety of a file and discern for itself any fact of circumstance which might be thought relevant to the determination of such an application.  The financial statements were not referred to.

15. As to Ground 4, whatever may be the precise parenting arrangements which are actually in place, it is clear that the parties have agreed in consent orders to the child spending progressively increased amounts of time with the respondent father.  However that may be, the question posed by the application was whether the applicant mother and child might travel overseas for a period of three weeks in May 2019, having filed her application in January 2019.  The proposed period of travel is not of any extended period and make up time has been offered.

16. As to Grounds 6 and 7, the earlier reasons expressly recognised that India is not a Hague Convention Country.  The position of the applicant mother and child not being Australian citizens was also recognised as was the further evidence that the applicant mother proposes to attain Australian citizenship for herself and for the child, once the qualifying periods for doing so have been satisfied.  Those too are matters which constitute changed circumstances from the earlier allegations upon which the flight risk submission was based.  Far from ignoring the fact of the existing Watch List order, the application sought relief for the suspension of that order, so that the proposed travel could occur.

17. As to Ground 9, I accept that the earlier reasons contain no reference to the respondent father’s stated ability to care for the child in the period of the applicant mother’s absence from Australia.  However, reference was made to the child’s young age and that it would be in his best interests to both remain with his mother while she travels overseas, and, additionally, in order that he might meet his extended family.

18. As to Grounds 10, 11 and 12, I do not accept that the principles stated in the authorities to which I referred were not relevant to the present case: see Kuebler & Kuebler (1978) FLC 90-434; Line & Line (1997) 21 Fam LR 2059; Thomason & Malhotra [2010] FamCAFC 85. It will be a matter for the respondent father to persuade a Full Court that the authorities to which reference was made are distinguishable. The task of doing so will arise in the context that the court was referred to no authority or statutory provision bearing upon the applicable principles and leaving the court to locate such authorities for itself. My earlier reasons addressed each of the principles identified in those authorities including that the applicant mother would be motivated to return to Australia to secure her claim to an adjustment of property interests (and conversely not to forfeit those interests), together with the absence of any identifiable reason which might motivate the applicant mother to remain in India other than for the purposes of this brief period of travel.

19. I was not referred to any other considerations which might have been said to be relevant to the application for a stay and none appear to me to be of particular significance.  Nor was I referred to any authority which a stay had been considered in relation to a proposed travel application.  The evidence before the court on 18 March 2019 pointed to the respondent father having earlier purchased an airfare for the mother and child to travel to India on an earlier occasion and I regarded that to be a matter which warranted consideration in the circumstances of the case.  In this context, I note that the period of proposed travel as sought by the present application is for a relatively short period.

20. In the present case, the applicant mother has the benefit of a parenting order which permitted that the child might spend time with the applicant mother during the period of the proposed travel: s 64B(2)(b). Sub-division C of Div 6 of Part VII, of the Family Law Act1975 (Cth) contains provisions that creates obligations by certain parenting orders, including that a person must not hinder or prevent a person or their child from spending time together in accordance with an order of the court: s 65N(2)(a). The respondent father’s failure to comply with the order for the delivery of the child’s passport has hindered the applicant mother in relation to the child’s proposed travel to India in … 2019. In the circumstance that the respondent seeks a stay of the orders made on 18 March 2019 in the exercise of discretion, the failure to provide the passport to his solicitors is a matter which I take into account.

21. In all the circumstances, I did not accept that there were substantial grounds for the present appeal.  For the foregoing reasons, I refused the application for a stay of the orders made on 18 March 2019.  As was made plain in the course of the application, the refusal of the stay does not operate to prevent the respondent father from making an application for a stay of those orders to a Full Court if so advised.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge A. Kelly

Date:  2 April 2019