Sheldon & Weir (No. 4)
[2010] FamCA 1214
•21 December 2010
FAMILY COURT OF AUSTRALIA
| SHELDON & WEIR (NO. 4) | [2010] FamCA 1214 |
| FAMILY LAW – ORDERS – STAY - application for a stay of parenting orders – where notice of appeal not filed – whether Court has jurisdiction to grant of stay - as the time for lodgement of an appeal had not expired and the father informed the Court it is his intention to appeal there is jurisdiction to determine his stay application – temporary stay granted upon conditions |
| Family Law Rules 2004 r r 1.04, 1.09, 1.10, 1.12(3), 1.21, 22.03, 22.09, 22.11(2) |
| Aon Risk Services Ltd v Australian National University (2009) 239 CLR 175 Truong & Liu (Chen) (No. 2) [2008] FamCAFC 194 Friscioni & Friscioni [2009] FamCAFC 43 De Lewinski v Director General, New South Wales Department of Community Services (1996) FLC 92-678 JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 |
| APPLICANT: | Mr Sheldon |
| RESPONDENT: | Ms Weir |
| FILE NUMBER: | (P)NCC | 3259 | of | 2009 |
| DATE DELIVERED: | 21 December 2010 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 21 December 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Peattie |
| SOLICITOR FOR THE APPLICANT: | Slade Manwaring |
| COUNSEL FOR THE RESPONDENT: | Mr Tregilgas |
| SOLICITOR FOR THE RESPONDENT: | Burke Elphick & Mead |
Orders
Subject to compliance by the father with Orders 2 and 3 of these orders, Orders 3, 7, 8, 9, 10, 11, 12, 13, 14, 15, 18, 20, 23, 24, 25, 31 and 32 be stayed until 11 January 2011 or further order of the Court, whichever shall first occur.
No later than 5.00 pm on 22 December 2010 the father shall deposit $300 cash with the mother’s solicitors towards the mother’s living expenses.
The father shall file and serve a Notice of Appeal, pay any required filing fee and lodge other documents required by the Family Law Rules 2004 no later than 6 January 2011.
In the event the father fails to comply with Order 3, Order 1 is discharged.
Service of the documents referred to in Order 4 is to be effected within 24 hours of filing.
The mother is restrained from removing the child R Sheldon, born … April 2008 from the Commonwealth of Australia before 12 January 2011 or further order of the Court, whichever shall first occur.
It is requested that the Australian Federal Police place the abovenamed child on the PASS alert system in force at all points of arrival and departure in the Commonwealth of Australia and maintain her on the PASS alert system until 12 January 2011 or further order of the Court whichever shall first occur.
The father’s Application in a Case filed 17 December 2010 is adjourned for further hearing before me at 10.00 am on 10 January 2011.
Liberty to apply to Ryan J on two days notice.
IT IS NOTED that publication of this judgment under the pseudonym Sheldon & Weir (No. 4) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: (P)NCC 3259 of 2009
| Mr Sheldon |
Applicant
And
| Ms Weir |
Respondent
REASONS FOR JUDGMENT
These reasons were delivered orally.
On 8 December 2010, I delivered judgment and made orders in parenting proceedings between the parties. In a suite of 34 orders, the pivotal matters were orders for the mother to have sole parental responsibility and permission to remove their two and a half year old daughter from Australia and relocate to the Republic of Ireland.
Order 32 requires that the mother give the father 14 days written notice of when she plans to depart Australia with the child. The following day, that is, on 9 December 2010, the mother’s solicitors informed the father’s solicitors in writing she and the child would depart Australia for the Republic of Ireland on 23 December 2010.
Rule 22.03 of the Family Law Rules 2004 (“the rules”) relevantly provides a notice of appeal must be filed within 28 days after the date the order appealed from was made. Time in a case runs during a period when the filing registry is closed (r 1.21). Thus, the father has a right to appeal the orders made on 8 December 2010, provided he files a notice of appeal and complies with the rules and regulations in relation to starting an appeal by 6 January 2011.
On 17 December 2010, the father filed an application in a case which seeks the following orders:
3.That the provisions of Rule 22.11, to the extent that they require an Appeal to have been filed prior to any Application for a stay, be dispensed with.
4.That Orders numbered 3, 7, 8, 9, 10, 11, 12, 13, 14, 15, 18, 20, 23, 32 of the Family Court of Australia at Newcastle made on 8 December 2010, in these proceedings, be stayed pending the determination of the Applicant’s Appeal from the said Orders.
5.In the alternative to Order 4, that the Order permitting the Mother to relocate the child outside the Commonwealth of Australia be stayed until 31 January 2011 and that the Father have liberty to restore this Application to the list to seek Order 4 consequent upon the filing of an Appeal.
6.Such further or other order as this Honourable Court deems fit.
This was the first notice the father had given the mother he opposed her removing the child from Australia on 23 December 2010. The failure by the father’s solicitor or the father to respond to the mother’s solicitor’s letter of 9 December 2010 warrants unfavourable comment and is a matter to which I shall return. In any event, a registrar shortened time and listed the father’s application for a stay for hearing before me at 3.00 pm today. Service was to be effected upon the respondent by 5.00 pm Friday, 17 December 2010. That is the day upon which the application was filed.
Before turning to consideration of the facts since I delivered judgment, it is useful to recite key components of the chronology referred to in my substantive reasons.
The mother was born in Ireland in October 1977.
The father was born in Australia in April 1979.
On 2 February 2005, the mother left Ireland for an international working holiday. She arrived in Australia in May 2005.
The parties met on 28 May 2007, and within a short time, they began dating.
By August 2007, the mother was pregnant with the subject child.
On 9 September 2007, the parties moved in together.
On 16 September 2007, the parties booked two one-way air tickets to Ireland for departure on 21 December 2007. The mother developed deep vein thrombosis and because of the risks the parties understood flying would pose to her and the baby, they agreed to postpone their journey to Ireland, and cancelled their flights.
The child was born in April 2008.
On 16 December 2008, the parties and child departed Australia for Ireland. In Ireland, they lived with the mother’s parents. The father had taken leave of absence prior to the parties’ departure.
On 3 January 2009, the parties separated.
On 13 January 2009, in Ireland, they attended marriage counselling, where they agreed to separate and attend mediation. By then it was clear to the father that the mother did not agree with his proposal the family return to Australia forthwith. Thus, he decided he would return to Australia alone.
On 27 January 2009, the mother and child farewelled the father. He flew to Paris, where he holidayed for one week, then onto Australia where he arrived on 2 February 2009.
On 13 February 2009, the father lodged an application with the Department of Community Services, in which he sought that Australia, pursuant to The Hague Convention on the Civil Aspects of International Child Abduction, request Ireland return the child to Australia. Ireland accepted Australia’s request, and on 17 July 2009, the High Court in the Republic of Ireland ordered that the child be returned to Australia. The father had, in the meantime, arrived in Ireland for the Abduction Convention proceedings. He and his brother had been there since 24 June 2009.
The mother appealed the return order, which appeal was dismissed by the Supreme Court of the Republic of Ireland on 19 November 2009. Following a further hearing in relation to the conditions of return and associated matters, orders were made for the child to return to Australia in the father’s “de facto custody” on 27 December 2009.
On 24 December 2009, without notice to the mother, the father filed an application for interim and final parenting orders in this Court.
The father and child arrived in Australia on 29 December 2009. The mother arrived the same day, albeit separately.
In accordance with interim orders made in this Court on 13 January 2010, the father delivered the child to the mother at T Police Station. This is the first time the child had seen the mother from when she had been delivered to the father in Ireland for their journey to Australia.
Since 22 January 2010, when further interim orders were made, the child has lived with the mother and spent time with the father from 9.00 am to 4.00 pm each Sunday and Wednesday.
The final stage of this Division 12A hearing commenced on 5 July 2010 for seven days. A quite long judgment was delivered, and orders were made on 8 December 2010.
Power
It will be recalled, the father has not lodged a notice of appeal.
A question which thus requires consideration is the Court’s power to order a stay absent an appeal. By r 22.11(2), a party may apply for an order staying the operation of orders if an appeal has been started. Rule 1.12 enables the Court to dispense with the rules. The factors relevant to dispensation include, per r 1.12(3) the following:
(3)In considering whether to make an order under this rule, the court may consider:
(a)the main purpose of these Rules (see rule 1.04);
(b)the administration of justice;
(c)whether the application has been promptly made;
(d)whether non-compliance was intentional; and
(e) the effect that granting relief would have on each party and parties to other cases in the court.
Rule 1.04 provides that the main purpose of the rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the Court that is reasonable in the circumstances of the case.
The father applies for the Court to dispense with r 22.11(2). His point being there would then be no impediment to the determination of his stay application notwithstanding he has not filed a notice of appeal. However, unless there is an underlying power to determine a stay application without an appeal having been filed, dispensation with the rules, would not suffice. In his article, ‘Interlocutory Orders Pending High Court’ (1995) 13 ABR 45, J Daley noted ‘[t]he creation of a jurisdiction by an as yet non-existent appeal is practical, even if it is theoretically curious. It is justifiable only if the applicant has undertaken to institute and prosecute High Court proceedings forthwith’.
In Erinford Properties Limited & Cheshire County Council [1974] Ch 261 Megarry J granted a stay before an appeal was filed. In that case, he recited a long line of authority, which held ‘when there is an appeal about to be prosecuted, the litigation is to be considered as not at an end …That applies … just as much to the case where the action has been dismissed’. The principles enunciated in Erinford Properties Ltd & Cheshire County Council were approved by Toohey J in Paringa Mining & Exploration Co plc v North Flinders Mines Ltd and Others (1988) 81 ALR 501 at 506.
This line of authority would support the Court concluding that as the time for lodgement of an appeal has not expired and the father has informed the Court it is intention to appeal, there is jurisdiction to determine his stay application. If it was considered dispensation of r 22.11(2) would nonetheless be insufficient, regard could be had to r 1.09 to address a lacuna in the rules. Rule 1.09 provides if the Court is satisfied that:
(a)a legislative provision does not provide a practise or procedure; or
(b)a difficulty arises, or doubt exists, in relation to a matter of practice or procedure; it may make such orders as it considers necessary.
In the alternative, if there is any doubt about the creation of jurisdiction by a non-existent appeal during the appeal period, as an incident of the Court’s inherent jurisdiction, there is power to determine this application. Support for this proposition can be found in De Lewinski v Director General, New South Wales Department of Community Services (1996) FLC 92-678. Before the Court in De Lewinski was an application to stay orders made by the Full Court of this Court in Abduction Convention proceedings. An application for special leave to the High Court had not yet been instituted. Gummow J determined the Full Court erred in refusing a stay, even though the application for special leave to appeal had not been instituted. In his judgment, his Honour pointed out the importance of the court familiar with the matter determining a stay application in a principled manner. This was, as his Honour stated “Important for the administration of justice”. So that it is clear it was accepted that although an application for special leave to appeal to the High Court had not been filed, jurisdiction existed in both the Full Court and the High Court to stay the orders made by the Full Court.
Discussion
The question which then arises is, should the Court dispense with provisions of the rules, or reliant on r 1.09 and r 1.10, enable the stay to proceed?
In support of his application to dispense with r 22.11(2) and to proceed with his stay application, the father relies upon his affidavit filed 17 December 2010. In summary, he deposes to being present at about 5.00 pm when judgment was handed down. The record would show the father’s solicitors, at their request, appeared by telephone. The judgment is some 160 pages. A second copy of the judgment was sent to the father’s solicitors which, he reveals, they received on 10 December 2010. Although the father had a copy of the judgment on 8 December 2010, and could have made it available to his solicitors on 9 December 2010, for reasons not disclosed, this did not happen.
On Tuesday 14 December 2010, the father’s solicitors applied for a grant of legal aid to bring this application. The application for legal aid was granted on 15 December 2010. In addition, the father has given instructions to appeal and to seek the advice of counsel in relation to settling the grounds of appeal. A brief has been delivered to counsel with whom the father’s solicitor has met.
As I understand the gravamen of the father’s case, it is until he has met personally with counsel and contributed to the drafting of the notice of appeal he is not in a position to present what I understand is an otherwise available draft notice of appeal. While the advantages of counsel’s advice being obtained before a notice of appeal is filed are obvious, I do not accept that in the circumstances of this case where the father is represented by experienced family lawyers the inability to receive counsel’s advice stands in the way of filing an appeal. I note the rules make provision for amendment without permission of a notice of appeal up to and including the date fixed for filing of the summary of argument by the appellant (r 22.09).
More relevantly in my view, the father points out he is within time to appeal as of right, and has moved quickly to ensure an appeal is lodged within time. At this stage, it is asserted there is no evidence of delay and the administration of justice is promoted by him being given the opportunity to file a notice of appeal which does not require amendment. Thus, the Court would be able to undertake a preliminary assessment of the strength of his proposed appeal before the child could be removed from Australia. According to the father, any other approach would render his appeal nugatory and fly in the face of the proper administration of justice. There is force to aspects of this submission. However, the approach taken by the father also deprives the Court of the opportunity to also assess whether the appeal is merely a delaying tactic.
The authorities make plain a stay is not ordered as a matter of right. It is discretionary, and the decision to grant or refuse a stay will depend upon the circumstances of the particular case. In relation to an application to stay parenting orders, the Full Court in Truong & Liu (Chen) (No. 2) [2008] FamCAFC 194 described the process thus:
38.These principles, both in the general law and in respect of parenting proceedings, are well settled (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (1986) 160 CLR 220 at 230; Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685. Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; Clemett and Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter included 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 “special” or “exceptional” circumstances;
· a person who has obtained a judgment is entitled to the benefit of that judgment;
· the person who has obtained a judgment is entitled to presume the judgment is correct;
· the mere filing of an appeal is insufficient to ground 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 the 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 a stay for a short period of time; and
· the best interests of the child the subject of the proceedings.
See also Friscioni & Friscioni [2009] FamCAFC 43. This is a case where the Full Court dismissed an appeal against a refusal by the trial Judge to stay orders which enabled a mother to remove a child from Australia to Czechoslovakia, although the appeal had not been heard. It is noteworthy, in Friscioni, however, that the appeal period had expired before the father’s application for a stay was determined and he had filed a notice of appeal.
The mother opposes the granting of a stay. She points out that she gave notice on 9 December 2010 of her planned departure date. There was no indication, at that point, from the father, he planned to appeal. In fairness to the father, he had had the judgment and orders for less than 24 hours. The mother points out that the first indication she had he proposed to appeal or, indeed, opposed her removal of the child from Australia, was when she was served with this application late on 17 December 2010. The point being, the father had the mother’s correspondence for eight days before he informed her of his opposition to the child’s removal from Australia. I was curious about this when I read the mother’s evidence, and it was my expectation that upon enquiry I would hear that there was a misunderstanding by the mother. However, I was surprised to learn that the father and those advising him did not respond to her solicitor’s letter of 9 December 2010. And, that there is no dispute that the first she knew he opposed her departure was when she was served with this application. By way of explanation, I am informed the father’s solicitors no longer had a grant of legal aid, and they determined that they would not take steps in relation to the matter.
Counsel for the mother referred to comments made by Heydon J in Aon Risk Services Ltd v Australian National University (2009) 239 CLR 175 to the effect that, on occasions, to use the vernacular, it is necessary for legal practitioners to burn the midnight oil. In other words, in a case such as this, it would have been reasonable and appropriate for the father’s solicitors to decide to write a short letter which one would have anticipated would have incurred costs of no more than some $50.00, perhaps a little more, and advised the mother of his opposition to the child’s removal and his intention to appeal and apply for a stay.
Counsel for the father advised the Court that the reason the father did not provide notice is that his solicitors were still on the record and he, therefore, could not communicate with the mother’s solicitors. The fallacy of this argument is obvious. Firstly, the father is entitled to file a notice of address for service. Secondly, on 14 December 2010 he filed an application for property and child support orders in his own right in which he gave his address as the address for service. Those documents have been served on the mother. This invites the rhetorical question, why did the father think he could commence those proceedings and serve the mother, but not write a simple letter? The failure by those advising the father and the father to respond to the mother’s letter of 9 December 2010, the Court finds quite troubling. In any event, it is submitted by the mother she was entitled to conclude from his failure to respond that the father did not propose to stand in the way of her planned departure with the child from Australia. I agree.
The mother points out that the father and those advising him ought to have anticipated, by reference to the totality of the facts and matters highlighted at paragraph 561 of the Court’s reasons, that it was likely she would seek to promptly exercise the rights given to her pursuant to the orders to relocate. In other words, she was entitled to the benefits of the orders obtained by her, or as is often referred to, the fruits of the litigation.
The mother was, however, incautious when she purchased airline tickets on 8 December 2010. Her decision to take that step had nothing to do with action or inaction by the father. Precisely when she gave notice to Centrelink, relinquished her lease, sold her furniture, possessions, and listed her car for sale, is not entirely clear but clearly after 8 December 2010. The mother is now living with Ms O in circumstances, with no disrespect to Ms O, which are unsatisfactory for the mother and the child. The mother points out that the Court has determined the child’s best interests are to live with her and in Ireland. These latter matters are all weighty considerations which weigh in favour of the mother’s opposition to a stay.
However, on balance, notwithstanding the hardship which I am satisfied would be caused to the mother, I am persuaded that the administration of justice requires that the father is given the opportunity to present his notice of appeal, and for that to be considered within the context of a stay application before the mother is able to depart Australia with the child, if that is the Court’s decision. It is, of course, often only with the benefit of considered analysis of reasons that what might be considered as a judgment that is safe in an appellant sense, it becomes apparent there may be a proper basis for an appeal. In my view, the father, notwithstanding the unsatisfactory way in which he has contributed to hardship for the mother and the child, should have the time prescribed by the rules within which to commence an appeal.
I agree with counsel for the mother that generally, an application for a stay should not be made absent the filing of a notice of appeal. Counsel for the mother referred to remarks made by Kirby J in JRN & KEN v IEG & BLG (supra) at par 1332 which are referred to in par 55 of Frisconi. These are apt. Nonetheless, a stay, in these circumstances, should be granted only on a limited basis. To do otherwise would leave the mother in a position of uncertainty for an indefinite period of time, potentially requiring her to come back to the Court to seek dismissal of the stay to obtain the benefits of a judgment regularly obtained.
I observe the father, to moderate hardship to the mother and child, offered to give up occupation of the home he rents at P, to provide the house furnished, with some food and the use of his grandmother’s car. The father has previously made offers to another court in reasonably similar terms. In my substantive reasons I said was satisfied, and as I understood, this was conceded on his behalf today; he failed to honour those undertakings. For the Court to place weight against that background on such an offer would be erroneous. It would be, in simple terms, a triumph of hope over experience, and inappropriate. However, the father does offer to give the mother $300.00, which he says he can do tomorrow. He will be required to do this in cash to the mother’s lawyers.
It is agreed the time within which to lodge an appeal period expires on 6 January 2011. It is my intention to adjourn this stay application for hearing in the week commencing 10 January 2011. On that occasion, I will look closely to see the grounds of appeal. This affords the mother the opportunity, albeit briefly, to consider the grounds. On the adjourned date, I will also be looking to see that the father has taken steps to prosecute his appeal promptly. The father is represented and it is not for me to give him advice about how that might be done. However, the appeal would need to be filed in time, the filing fee paid or waived and any other necessary documents filed. There is a sitting of the Full Court of this Court commencing 31 January 2011. I will be interested to see whether the father has filed an application for expedition and if he has obtained a transcript. Without a transcript likely to be available soon would tend to suggest the father would not be in a position to prosecute an expedited appeal. I am conscious a transcript is very expensive, and irrespective of whether the father has obtained a grant of legal aid, it will be the Court’s expectation that the obtaining of the transcript is well underway.
These would all be signs that the Court could, perhaps, on the next occasion, accept that the father is in a position to prosecute his appeal expeditiously, and that there would be no impediment to the quick disposition of an appeal. If these matters and such other matters as are necessary to ensure expedition are not done, this is likely to be a matter of some significance on the next occasion.
It is appropriate to support the temporary stay by orders which would prevent the child being removed from Australia prior to finalisation of this stay hearing.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 21 December 2010.
Associate:
Date: 11 January 2011
10