Sheldon & Weir (Stay Application)
[2011] FamCAFC 5
•24 January 2011
FAMILY COURT OF AUSTRALIA
| SHELDON & WEIR (STAY APPLICATION) | [2011] FamCAFC 5 |
| FAMILY LAW - APPEAL – STAY – FINAL PARENTING ORDERS – where the trial Judge refused to grant a stay of her orders permitting the mother to relocate the child overseas where appeal pending against relocation orders - where no error found in the exercise of discretion – appeal dismissed FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – application for expedition of appeal against final parenting orders – expedition granted FAMILY LAW - COSTS – no order for costs |
| Family Law Act 1975 (Cth) |
| Friscioni & Friscioni [2009] FamCAFC 43 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 Trahn & Long (No. 2) [2008] FamCAFC 194 |
| APPELLANT: | Mr Sheldon |
| RESPONDENT: | Ms Weir |
| FILE NUMBER: | NCC | 3259 | of | 2009 |
| APPEAL NUMBER: | EA | 13 | of | 2011 | |
| EA | 4 | of | 2011 | ||
| HEARING DATE: | 20 January 2011 | ||||
| DATE OF ORDERS: | 21 January 2011 |
| DATE OF REASONS: | 24 January 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Finn and Ainslie-Wallace JJ |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 January 2011 |
| LOWER COURT MNC: | [2011] FamCA 2 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Self-represented |
| COUNSEL FOR THE RESPONDENT: | Ms Elbourne |
| SOLICITOR FOR THE RESPONDENT: | Burke Elphick & Mead |
Orders made on 21 January 2011
The appeal against the orders made by the Honourable Justice Ryan on 11 January 2011 be dismissed.
There be no order for costs in relation to the appeal against the orders of 11 January 2011.
The hearing of the appeal against the orders made by the Honourable Justice Ryan on 8 December 2010 be given such expedition by the Appeal Registrar as is possible, consistent with the progress of the preparation of the appeal.
It is noted in connection with these orders that it is proposed that the reasons for these orders will be delivered on Monday, 24 January 2011.
IT IS NOTED that publication of this judgment under the pseudonym Sheldon & Weir (Stay Application) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 13 of 2011
EA 4 of 2011
File Number: NCC 3259 of 2009
| Mr Sheldon |
Appellant
And
| Ms Weir |
Respondent
REASONS FOR JUDGMENT
These are reasons for orders made on 21 January 2011. In those orders this Court dismissed an appeal by the father of a child (aged just under three) against orders made by Ryan J on 11 January this year (2011) whereby her Honour refused to stay orders which she had made on 8 December 2010, which “permitted” the mother of the child “to relocate the child to the Republic of Ireland”, notwithstanding that the father had on 23 December 2010 filed an appeal against the orders permitting the relocation of the child.
Factual background
The factual background to this case is set out in detail in the reasons for judgment delivered by Ryan J on 8 December 2010, and again, but more briefly, in her reasons for judgment of 11 January 2011.
It is only necessary to say here that the father is an Australian national of Aboriginal heritage and the mother is an Irish national. They met and began a relationship in this country in the first half of 2007. Their child was born in April 2008, and in December 2008 the parents and child travelled to Ireland where they lived with the mother’s parents.
In early 2009 the parties separated, with the father returning to Australia and the mother and child remaining in Ireland. When he returned to Australia the father initiated proceedings under the Hague Convention on the Civil Aspects of Child Abduction. As a result of those proceedings (which included appellate proceedings in Ireland) the child was returned to Australia in the care of the father in December 2009. The mother returned to Australia at approximately the same time.
On 22 January 2010 Austin J made orders on an interim basis for the child to live with the mother and spend two days each week with the father.
In July 2010 Ryan J heard proceedings for final parenting orders over seven days, and on 8 December 2010 made orders conferring sole parental responsibility on the mother and permitting her to take the child back to Ireland to live. Her Honour’s orders required the mother to give the father 14 days’ notice of when she and the child would leave for Ireland. That notice was given by the mother’s solicitors by letter to the father’s solicitors on 9 December 2010.
On 17 December 2010 the father through the solicitors then acting for him, filed an application seeking a stay of the orders of 8 December 2010, although a notice of appeal against those orders had not at that stage been filed.
The father’s application for a stay was heard by Ryan J on 21 December 2010. Even though the father had not filed an appeal against the orders of 8 December 2010, her Honour was prepared to adjourn the hearing of the stay application until 10 January 2011, effectively to give the father time to file his notice of appeal within the prescribed period of 28 days. She was also prepared to grant a temporary stay until 11 January 2011 of her orders which permitted the return of the child to Ireland, and she delivered reasons for judgment that day explaining the decision and orders which she had made that day.
It appears that following the hearing on 21 December 2010, the father’s solicitors ceased acting for him. Nevertheless, the father was able on 23 December 2010 to file a notice of appeal against the orders of 8 December 2010. In the orders sought in that notice of appeal, the father also sought expedition of the hearing of the appeal. (Expedition of the hearing of an appeal should under, the relevant Rules of Court, be sought by way of “an application in an appeal” supported by an affidavit. But despite the father having not used the correct form we were prepared to deal with his application and make an order for expedition in our orders of 21 January 2011.)
On 10 January 2011 the hearing of the adjourned application by the father for a stay continued before Ryan J with the father then appearing for himself. At the conclusion of that hearing, her Honour reserved her judgment until the following day.
On the following day (11 January 2011) her Honour delivered a comprehensive judgment of some 25 pages in which she dismissed the father’s application for a stay, but in which she also made provision for the sale of the mother’s motor vehicle and the retention of the proceeds in trust as security for the return of the child to Australia in the event of a court order to that effect.
It is from Ryan J’s orders of 11 January 2011 that the father now appeals by way of a notice of appeal filed on 17 January 2011. The appeal was heard as a matter of urgency on 20 January 2011 as the Court was informed that arrangements had been made for the mother and the child to leave Australia on 25 January 2011.
Before examining the grounds of appeal on which the father challenges her Honour’s refusal to stay her orders for the return of the child to Ireland, it will be useful to refer to the principles which her Honour applied to the determination of the stay application and to the summary which she provided of her reasons for refusing the stay. It will be necessary to consider in greater detail her reasons for refusing the stay so far as they are relevant to the father’s grounds of appeal when we consider those grounds.
Principles governing the granting of a stay in child related proceedings
In her reasons for judgment delivered on 21 December 2010 granting the temporary stay, her Honour cited paragraph 38 of the decision of the Full Court in Trahn & Long (No. 2) [2008] FamCAFC 194 as an authority containing the principles governing the grant of stays in cases involving children. In paragraph 74 of her reasons for judgment of 11 January 2011, she referred to that previous citation and incorporated into her judgment of 11 January 2011 paragraph 38 of the decision in Trahn & Long (No. 2); that paragraph is as follows:
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.
We accept for present purposes that this is a correct statement of the relevant principles. We also accept that these were the principles applied by Ryan J in the determination of the father’s stay application.
In her reasons for judgment of 11 January 2011, Ryan J also cited paragraphs 53 to 57 of the Full Court’s decision in Friscioni & Friscioni [2009] FamCAFC 43. It is not necessary for us to repeat those paragraphs save for paragraphs 56 and 57. We repeat paragraphs 56 and 57 because as the father explained in his submissions to us, her Honour’s citation of them was the basis of his second ground of appeal, in which he asserted that her Honour had erred “in the application of the applicable law Clemett & Clemett (supra) Nygh J, and Tranh (sic) and Long (No 2.)”. The paragraphs in question are as follows:
56.In Clemett and Clemett (supra) Nygh J 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 within 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.
57.In Trahn and Long (No 2) (supra) the Full Court included as “principles” the following:
·the desirability of limiting the frequency of any change in a child’s living 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.
It may be that these are not separate factors but that in the context of consideration of the best interests of a child it is desirable to limit the frequency of changes in the living arrangements for a child.
However when we discussed Ground two with the father, it emerged that he relied on the above paragraphs because they demonstrated the need to avoid frequent changes in a child’s living arrangements and also the importance of the child’s best interests. These were matters which, according to the father, her Honour had failed to properly consider. We will return to these matters when we examine the grounds of appeal. But before doing so, it is necessary to provide some explanation of her Honour’s reasons.
Ryan J’s reasons for refusing the stay
Her Honour commenced her reasons for judgment in relation to her refusal to stay the orders for the return of the child to Ireland by setting out a history of the matter with particular emphasis on events since her orders of 8 December 2010, including events since the commencement of the stay proceedings on 21 December 2010. We will return later to certain of those events.
Having referred to the “applicable law” in the way in which we described above, her Honour then set out the 34 grounds of appeal contained in the father’s original notice of appeal (filed 23 December 2010) against the orders of 8 December 2010, and she also set out thirteen additional grounds of appeal contained in an amended notice of appeal which the father proposed to file. (The father subsequently filed that amended notice of appeal on 17 January 2011, and a statement of the 47 grounds of appeal contained in that amended notice is annexed to these reasons.)
Her Honour then discussed at considerable length (at paragraphs 77 to 115 of her reasons) the matters raised by the father (who had appeared before her Honour on 10 January 2010 without legal representation as he did before us on 20 January 2011) and the mother’s solicitor in support of, and in opposition to, the grant of a stay.
Her Honour concluded at paragraph 116 that “[w]hen these matters are all considered and weighed it is my view that the father’s stay application should be refused”. She then set out in summary form the factors which weighed in favour of the grant of a stay, all of which can be seen as having been previously discussed in paragraphs 77 to 115 of her reasons. It is useful to set out those factors as identified by her Honour in the following tabular form:
·the father is bona fide;
·there is some merit in his appeal;
·there would be a significant change to the child’s circumstances;
·that issues may arise in securing the return of the child if ultimately an order is made for this to occur.
Having set out those factors, her Honour then set out in paragraph 117 “the particularly significant factors which weigh in favour of a refusal”. Again we will set out these factors in tabular form, but we do so in the precise language used by her Honour so that her reasons for refusing the stay can be fully understood:
·I am strongly satisfied that even if the hearing of the father’s appeal were expedited he cannot be relied upon to do all which is required of him to ensure an expedited hearing occurred. His history of non-compliance with his promises to courts, procedural and parenting orders weighs significantly against him in this regard.
·I am particularly concerned about the unsatisfactory situation in which the child and mother now find themselves. Although this is something to which the mother has contributed so too has the father.
·The threefold increase in the mother’s medication because of the deterioration in her emotional and psychological wellbeing is another important factor. Because of the child’s reliance upon the mother this directly affects the child, and as I said earlier it is not surprising there is evidence the child is struggling.
·I am strongly satisfied it is important and clearly in the child’s best interests that the best interests’ outcome ordered on 8 December 2010 is promptly implemented.
The grounds of appeal against the refusal to stay
Ground relating to the merits of the appeal
We will address first the third of the father’s six grounds of appeal, being that her Honour erred “in finding that the substantive appeal against the orders of 8 December [2010] has limited opportunity for success” as this was the first matter canvassed by her Honour in the discussion of the issues which had been raised before her.
In her Honour’s discussion of the merits of the father’s grounds of appeal against her orders of 8 December 2010, she recorded (at paragraph 79 of her reasons of 11 January 2011) the father’s contention that his appeal was “a strong appeal”, and she recorded various grounds and/or matters that the father said would be subject to challenge on appeal, particularly issues relating to his aboriginality and the need for the child to be involved in that heritage. She also recorded the submissions made on behalf of the mother which largely relied on the difficulties which appeals against discretionary decisions encounter.
Her Honour then concluded:
88. On a reconsideration of my reasons although one could not conclude there is no merit in the father’s grounds of appeal as presently drafted they are relatively modest and a successful appeal is more unlikely than likely. When the grounds are considered in the context of my knowledge of the evidence and the analysis of those issues in my reasons, I am unable to find the appeal is based on substantial grounds.
It will be recalled, however, that at the conclusion of her reasons when her Honour summarised (at paragraph 116) the factors which favoured the grant of a stay, she acknowledged that there was “some merit” in the father’s appeal. She also then stated that she accepted “that others might have a different impression of the merits of the father’s appeal and view these as having greater merit than I do”.
As we endeavoured to explain to the father when he was before us, it is impossible, at least in most cases, for a Judge in the position of her Honour, or an appellate court in our position, to be able in the context of proceedings relating to a stay of orders pending an appeal against those orders, to determine whether the appeal will ultimately be successful. As we also endeavoured to explain to the father, her Honour certainly did not find that his appeal was unarguable or totally without merit. It was, however, open to her to view his appeal as having “limited opportunity for success” (although she did not actually use those words). Ground three of the present appeal does not therefore have substance. The real importance of her Honour’s conclusion was that while she could not say the appeal must succeed, she could not say that it would not succeed. Thus the focus of her decision then turned to other factors.
Grounds relating to the mother’s financial hardship
The father’s first and fourth grounds can be seen as related, with the first ground asserting that her Honour erred in finding “… that the photo album message contributed to the respondent’s hardship”, and the fourth asserting error on her Honour’s part “… in giving too much weight to the respondent’s financial hardship”.
The “photo album message” referred to in Ground one relates to the issue of what steps the father took to inform the mother that he would appeal the order of 8 December 2010 and thus seek to prevent her leaving Australia within the 14 days effectively provided under those orders for her to do so, and also to the difficult position in which the mother found herself by the time the appeal was filed and the proceedings for a stay instituted. These matters are best explained by reference to the following paragraphs of her Honour’s reasons for judgment of 11 January 2011:
52. … Judgment was delivered and orders made on 8 December 2010. As has been mentioned orders were made which enabled the mother to relocate the child to the Republic of Ireland. Order 32 requires that she give the father written notice in 14 days of when she plans to depart Australia with the child.
53. On 8 December 2010 the mother purchased aeroplane tickets for her and the child to return to Ireland.
54. On 9 December 2010, the mother’s solicitors informed the father’s solicitors in writing that she and the child would depart Australia for the Republic of Ireland on 23 December 2010.
55. As the transcript of 21 December 2010 reveals neither the father nor his solicitors responded to the mother’s solicitor’s letter of 9 December 2010. Before responding to the Court’s enquiry about whether or not there had been a response to the letter, counsel for the father sought and was given a short adjournment to clarify the situation. As recorded in my reasons of 21 December 2010, counsel for the father informed the Court his solicitors, at that stage, no longer had a grant of legal aid and they determined not to respond to the letter. It was said that the reason the father did not provide notice was because his solicitors were still on the record and he, therefore, could not communicate with the mother’s solicitors. During submissions counsel for the father agreed the father could have taken steps to inform the mother he planned to appeal, apply for a stay and opposed her making arrangements to depart Australia with the child on 23 December 2010.
56. As I said on that occasion, the failure by those advising the father and the father to respond to the mother’s letter of 9 December 2010, was quite troubling.
57. On 12 December 2010, the child returned from time with the father with a photograph album that contained photographs of her with the paternal family. On the inside cover there was written “[d]earest [R], we all love you very much. We will miss you every day. Lots and lots of love Daddy, Nanny, [the other parental family members]. Love and big kisses [R] from your whole family in Australia”. It is the mother’s evidence that “[b]ased on both the lack of notification as to [the father’s] intentions then the message contained inside the album, I inferred that [the father] did not intend to pursue an Appeal and/or Stay. I therefore proceeded to take steps in preparation of my trip to Ireland, including vacating my home, selling my belongings, and cancelling my Centrelink payments and health care card”.
58. The photograph album was prepared by the father’s sister, [D]. The father had informed her of the effect of the 8 December 2010 orders and that the mother planned to depart with the child on 23 December 2010. [D] was aware the father was exploring options of appeal but contemplated she may not see the child after 12 December 2010 prior to the child’s departure. Thus she prepared the album to comfort the child and to reassure her how much she was cared for. The father did not look in the album and passed it to the mother when he returned the child to her on 12 December 2010. His point being, in essence, he had no part in conveying a message to the mother which suggested he accepted the child could depart Australia on 23 December 2010. Considered from the mother’s perspective, however, it was reasonable in the absence of a response to her solicitor’s letter of 9 December 2010 for her to regard this as another indication the father did not oppose the child’s removal from Australia on 23 December 2010.
59. Some of the steps preparatory for her departure were taken by the mother before she received the album. Her car was listed for sale on 12 December 2010. She gave notice to her landlord on 9 December 2010 and on 10 December 2010 informed Centrelink of the orders and her plans to depart Australia with the child on 23 December 2010. The mother’s lease had expired on 5 August 2010 which she had not renewed. After the mother gave notice she was advised the property would be unavailable to her from 21 December 2010 and that new tenants would take occupation on 23 December 2010.
60. On 16 December 2010, the mother moved into a spare bedroom with a friend, [Ms O], and her family. There the mother and child share a bed. The child does not have a cot. The mother had sold furniture and effects at a garage sale and her mattress individually. The sale of her belongings achieved $300.00. She had given kitchenware and summer clothing to St Vincent de Paul before she received the father’s stay application.
61. On 17 December 2010 the father filed an Application in a Case seeking “Orders 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 said orders.” At the time of filing his Application in a Case, the father had not filed a Notice of Appeal. He sought 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.” This was the first indication by the father to the mother he would appeal and opposed her removal of the child on 23 December 2010.
When these paragraphs are considered, it will be seen that there was no express finding by her Honour that the photo album message contributed to the mother’s hardship, and thus Ground one has no substance. We acknowledge, however, that it might be implied from those paragraphs that the album message may have contributed to the mother considering that she was free to continue with arrangements to leave Australia, and thus to the difficult situation in which she now finds herself. However, it could not be said that the message in the album was the father’s fault.
But nothing can ultimately turn on these issues regarding the photo album message because her Honour acknowledged in paragraph 117 of her reasons (in a passage which we have already set out) that the mother as well as the father had contributed to “the unsatisfactory” situation in which the mother and the child now find themselves.
As to the mother’s position of financial hardship, which is the subject of Ground four, the position in which she found herself as at 16 December 2010 is set out in the paragraphs from her Honour’s reasons which we last set out. Later in paragraphs 67 to 73 of her reasons, her Honour recorded the mother’s position after 16 December 2010:
67.As was mentioned earlier, the mother had cancelled her Centrelink payments in preparation for her return to Ireland. The last Centrelink payment was due on 23 December 2010. On this date, the mother contacted Centrelink and advised them of the outcome of the stay application. Centrelink reinstated the mother’s single parent payment and family tax benefit, the effect of which she continues to receive Centrelink payments of $457.28 per week.
68.On 21 December 2010, counsel for the father informed the Court the father was willing to vacate the property his mother rented at [P], ensure there was a pantry and a refrigerator stocked with basic foods, and that his grandmother had volunteered to lend the mother a car for a reasonable period so that she would have transport. On 24 December 2010, the mother’s solicitors wrote to the father and acknowledged receipt of his payment of $300.00. They also asked whether he was:
… willing to provide any further assistance to both the mother and the child whilst they remain in Australia. In particular, we enquire as to whether you will make good the following offers:
1. to provide further cash assistance to our client;
2.to provide our client and the child assistance with respect to groceries;
3. to provide our client with a motor vehicle.
69.On 6 January 2011, the mother filed a further affidavit which was sent to the father’s email address noted on his correspondence from the mother’s solicitors. This email address is slightly different to the email address included on the father’s Notice of Address for Service and was not received by the father. The father received the mother’s affidavit by express post the following day.
70.That afternoon the father hand delivered a letter to the mother’s solicitor, curiously dated three days earlier, which responded to their letter posted 24 December 2010. In relation to the points raised by the mother’s solicitors the father responded he had paid $300.00 and would continue to pay assessed child support. In relation to the second point, he correctly pointed out his offer of assistance for the groceries related to the mother moving into [P]. Nonetheless, he said he was happy to drop some bags of food to the solicitor’s office or at changeover. He queried whether the request was for “more money by another name!” In relation to the use of his grandmother’s motor vehicle, he said this offer was “intended to be for the period that it took her to secure another vehicle”. As the vehicle had not been sold, he questioned whether she required a second. He additionally offered to provide “her with some furniture for her new residence”.
71.The father’s mother has now given up the lease on [P] and he has moved to [NH].
72.On 5 January 2010, [Ms O] was hospitalised with tonsillitis. Her son also had tonsillitis. In order to give the [O’s] some space and to avoid the child becoming ill, the mother and child moved out for a night and stayed at the home of another member of her mothers group.
73.Twice since 21 December 2010 [Dr H] has increased the dosage of antidepressant medication which the mother had been taking. She has also been prescribed sleeping medication (Normison) and referred to a psychologist. In a medical certificate dated 6 January 2011, [Dr H] said the mother “attended our surgery for relapse of her depression”.
Later in her reasons after she had concluded that it “may be many months before the father’s appeal would be determined” (which is a conclusion which we will later discuss), her Honour continued:
96.It is appropriate, therefore, to consider the child’s circumstances and whether this is satisfactory. In my reasons dated 21 December 2010 I said that the child’s and mother’s circumstances were unsatisfactory. The situation was and continues to be that the mother shares a room with the child at the home of her friend, [Ms O]. She has her car and otherwise she and the child are living out of suitcases. While this is a situation to which the mother has contributed, so too has the father by his failure to respond to the mother’s solicitors letter dated 9 December 2010. In my view the subject matter of that letter was so important anything less than almost an immediate reply was inadequate. On the adjourned hearing the father said he presumed his solicitors would have responded to this letter. This explanation is slightly different to that communicated by his counsel on 21 December 2010. Even if the father’s statement to me on 10 January 2011 is correct, this issue was too important for mere assumption. It was incumbent on the father to instruct his solicitors to immediately communicate his opposition to the child’s removal and inform the mother of his intention to appeal or alternatively to personally communicate this to her. Had he done so the mother would have been able to reconsider her position before she moved out of her rented property and sold her belongings.
97.The mother states that since leaving her rented home, the child has become confused and upset. Since living at the [O’s] home, the child has become more nervous, and on occasions cries and screams when the mother leaves, even if it is just to go to the bathroom.
98.Even before the mother gave up her rental accommodation, I described her financial position in my reasons at paragraph 279, and said she was in a very vulnerable financial position.
99.[Ms O] resides with her husband and their two children. They are a single income family and she said their offer of accommodation was only intended to be for a short period, namely from when the mother ended her tenancy and departed for Ireland on 23 December 2010. It is her belief, she and her husband “will be unable to continue to offer our support to [the mother] indefinitely because of our own financial circumstances”. I accept the mother’s accommodation arrangements are tenuous and unsatisfactory.
…
104.The father also points out that he is willing to give the mother a selection of furniture and kitchen equipment for her use. He correctly pointed out he had previously provided a selection of household items and some furniture, when the mother returned to Australia in early 2010. However, the mother no longer has any household goods and, notwithstanding the father’s offer, the mother would still be without, for example, a refrigerator, washing machine and numerous other household items which would be required to make her and the child anything near comfortable. The mother has $155.94 in the bank and a credit card debt of $4,941.42. She has yet to have her rental bond reimbursed and has no other assets. She has very little capacity to re-establish an adequate home environment.
105.Although the father said he was confident his mother would direct her rental bond refund to the mother, there was no evidence from the paternal grandmother she would do this. Thus, notwithstanding the father’s offers the mother and child would remain in a very difficult situation.
These then are the findings which her Honour made, and which support her conclusion that the unsatisfactory situation of the mother and child, supported the refusal of the stay.
We did not understand the father to directly challenge any of these findings. Rather his case was that the mother was in a worse situation in January 2010 when Austin J had been prepared to make interim orders placing the child in the mother’s care. The father queried why Ryan J had not been prepared to permit the mother to remain in her current situation pending the outcome of the appeal when Austin J had been prepared to do so.
The difficulty with this argument is that Austin J’s determination was made in the context of interim orders, whereas Ryan J’s decision was made in the context of the mother having the benefit of final orders in her favour. Furthermore, there are now other considerations, which we will shortly discuss, relating to the mother’s well-being.
Finally, in connection with the issue of the mother’s difficult current situation, we must deal with the father’s assertion in Ground four that her Honour placed too much weight on the mother’s current financial hardship. Again as we endeavoured to explain to the father, challenges to discretionary judgments based only on matters of weight have great difficulty in succeeding (see Gronow v Gronow (1979) 144 CLR 513). This is particularly so in the present case because her Honour expressly weighed up in paragraph 106 of her reasons (which is later set out) the hardship which the mother is experiencing against the hardship which the father claimed he would suffer if the stay was refused and the child could ultimately not be returned to Australia. (We will later discuss the issue of the child’s return to Australia should that be ordered.)
The ground directed to the mother’s emotional wellbeing
After she had concluded in paragraph 99 of her reasons of 11 January 2011, that “the mother’s accommodation arrangements are tenuous and unsatisfactory”, her Honour turned to the mother’s emotional and psychological health and the effects of that health on the child, saying:
100. It is clear the mother’s health has deteriorated since 21 December 2010. [Dr H] increased the mother’s antidepressant medication twice, the first time from 20mg to 40mg per day and the second time from 40mg to 60mg per day. That is, a three-fold increase in the mother’s dosage of antidepressant medication since 21 December 2010. The mother’s solicitor referred to findings made at paragraphs 543-545 of my reasons in the substantive matter. These related to the deterioration in the mother’s emotional and psychological wellbeing prior to 8 December 2010. There I discussed the cumulative effect on the mother of ongoing stress and anxiety through her dealings with the father and personal isolation, which therapy and medication had been unable to alleviate.
101. The circumstances which have developed since delivery of judgment in the substantive matter, in particular the mother’s belief in the face of the father’s failure to reply to her solicitor’s letter of 9 December 2010 that he did not oppose her departure with the child on 23 December 2010, render unsurprising that a person who the Court determined was already struggling emotionally, is now as distressed as the evidence established the mother is.
102. Because the child is young and was found to be reliant upon the mother to have her psychological and emotional needs met, it is also not surprising with the deterioration the mother’s emotional and psychological wellbeing that the child also appears to be struggling.
103. It is the father’s contention the Court would determine the child’s circumstances are satisfactory. He does not challenge the mother’s evidence about her distress and the effect of the ongoing litigation upon her. As I understood his submission, aspects of her evidence resonate with his own experience particularly whilst in Ireland for the Abduction Convention proceedings. However, he points out in his interim application that the child live with him in early 2010, the Court rejected his argument that the mother’s, in effect, vulnerable emotional health, depression and her and the child living in temporary accommodation with [Ms O], were unsatisfactory. Also, that for a time before the parties met, the mother was happy in Australia and in 2009, whilst she was in Ireland, the mother required mood stabilising medication and saw a psychologist. In essence, his point being, the mother and child’s situation now are similar to those which existed in early 2010 and thereafter and could not evaluated as being unsatisfactory. This submission fails to address the cumulative effect of events after the 2010 interim orders were made.
Her Honour had earlier recorded at paragraph 73:
73. Twice since 21 December 2010 [Dr H] has increased the dosage of antidepressant medication which the mother had been taking. She has also been prescribed sleeping medication (Normison) and referred to a psychologist. In a medical certificate dated 6 January 2011, [Dr H] said the mother “attended our surgery for relapse of her depression”.
These paragraphs from her Honour’s reasons explain and provide the background to her concluding that one of the significant factors weighing in favour of the grant of the stay was:
117. … The threefold increase in the mother’s medication because of the deterioration in her emotional and psychological wellbeing is another important factor. Because of the child’s reliance upon the mother this directly affects the child, and as I said earlier it is not surprising there is evidence the child is struggling.
It was clear from the father’s submissions to us that his sixth ground of appeal was directed to these findings and conclusions by her Honour. The terms of Ground six are that her Honour “erred in applying what were long term reasons in the orders for the return to the child to Ireland, to the short term nature of the stay application”.
It is fair to say that the father’s submissions to us in support of this ground were similar to those which he apparently put to her Honour and which are recorded above in paragraph 103 of her reasons. Put simply, those submissions were that the mother had emotional difficulties wherever she was and a change of country would therefore not make any difference for her, and thus for the child. We understood the father to argue that this argument was particularly cogent in the context of the grant of a stay given that it related only to a short period of time.
We are satisfied that her Honour’s findings and conclusion about matters relating to the mother’s emotional wellbeing and its impact on the child were well open to her and that she was entitled to take them into account and indeed put weight on them in reaching her decision not to grant the stay. These considerations remain valid even though the mother may ultimately have to return to Australia.
The ground directed to disruption in the child’s life and to her best interest
As mentioned much earlier in these reasons, it emerged in our discussions with the father that his second ground of appeal in which he referred to the decisions of Clemett and Trahn & Long (No.2), was in fact directed to the emphasis in those decisions on the desirability of limiting the frequency of changes in the child’s living arrangements, and in the paramountcy of the child’s best interests, with it being the father’s case that those matters had not been taken into account or given sufficient weight in Ryan J’s refusal to grant a stay. In this context it is also relevant to the father’s concerns expressed that a refusal to grant the stay would also interrupt the child’s experience with her Aboriginal heritage (as had happened while the child was in Ireland previously pending the outcome of the Hague Convention proceedings).
It appears from paragraphs 111 to 113 of her Honour’s reasons that these concerns on the part of the father were, to a degree, raised by him before her Honour (although the transcript shows that he did not directly refer to matters of the child’s experience of her aboriginality) and that they were considered by her Honour:
111.The father made strong submissions about the potential effect on the child of changing her circumstances. He emphasised she has continuously lived in Australia for the last 12 months. Here she has access to him and paternal relatives to a degree which would not be available to her in Ireland.
112.The mother pointed out that for the preceding year the child lived in Ireland with her and her maternal grandparents. She would thus, be returning to a place and people familiar to her and, to a situation which the Court was satisfied was consistent with her best interests. Reference was made by the mother to K & B (2006) 37 Fam LR 1 where the Full Court held that the interests of children would not be promoted by an inflexible requirement or presumption in every stay application 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 …
113.In my long judgment I explained my reasons for determining that it was in the child’s best interests to live with the mother and relocate to Ireland. Changes to the child’s routine, particularly the amount of time she could spend with the father and paternal relatives, were discussed at length. I also discussed the impact on the child’s relationship with the father when he returned to Australia and there was no face to face contact until he returned to Ireland in June 2009, as well as the longer period of time during which the child did not have contact with paternal relatives. These relationships were restored or developed after the child returned to Australia.
114.Provision is made in the orders for the father to spend time with the child in Ireland which, in the period between the child’s departure and the hearing of his appeal, he could avail himself. The father is a teacher and free to travel without jeopardising his employment during school holidays. In fulltime employment, he earns $70,000.00 per annum. Thus, the father could spend time with the child in Ireland pending the determination of his appeal.
In our view, her Honour dealt more than satisfactorily with these concerns on the father’s part and our interference with her exercise of discretion would not be warranted because of those concerns.
The timely prosecution of the appeal
The final ground of appeal to be considered is Ground five in which it was asserted that her Honour erred “in finding that the substantive appeal would not be prosecuted in a timely manner”. This is an important ground because as will be seen from the opening sentence of paragraph 96 of her reasons (which we have already set out) it was because of her concerns about the time that the appeal process would take, that her Honour considered it necessary to examine and place weight on the circumstances in which the child and the mother would find themselves pending the outcome of the appeal if a stay was granted.
In paragraph 89 of her reasons her Honour made the favourable findings, so far as the father was concerned, that he was “bona fide in his desire to overturn the decision” and that “the appeal is not merely a delaying tactic”.
However, in the remainder of paragraph 89 and in the following paragraph 90 she was somewhat critical of the father’s failure to file the correct application for expedition and the necessary supporting affidavit. In the event those criticisms probably matter little, because her Honour later recognised in paragraphs 91 and 93 of her reasons that the father was without legal representation by 23 December 2010, and there were difficulties in his obtaining any assistance from the Appeal Registry over the Christmas-New Year holiday period.
However, her Honour’s real concern (which is a continuing concern for us and is a difficulty for the father) is the father’s capacity to prosecute his appeal against the orders of 8 December 2010, which was expressed by her Honour in the following way:
90. … The father does not have a grant of legal aid for an appeal. He had spoken to the transcript providers and was informed a transcript would cost approximately $12,000.00. The father has not applied for a transcript and said that if he is refused legal aid for an appeal he would need to consider an application for a commercial loan.
It will be recalled that in her summary of the factors that militated against the grant of a stay, her Honour had expressed concerns regarding the father’s capacity to prepare his main appeal for hearing and she made reference in that context to his past history of failure to comply with procedural orders. That past history was also discussed in paragraph 92 of her reasons. We are not in a position to determine whether her Honour’s criticism of the father’s past compliance was justified or not. But again it probably ultimately matters little because the question is whether the father, given the uncertainty for him of legal aid for the appeal and his apparently poor financial situation, will be able to prosecute his appeal expeditiously, or even at all. Although the father pressed that if his legal aid application for the substantive appeal was not successful he could borrow the funds necessary to prosecute the appeal and particularly to acquire the transcript, this remains as much an unknown as it did before her Honour, and in our view, justified her Honour’s decision not to detain the mother and child in this country for an indefinite period.
Her Honour referred in paragraph 95 of her reasons to her understanding that the appeal even if it could be prosecuted by the father might take 12 months to be determined given the present work-load of the Full Court. That would not be likely to be the case if the appeal was given an expedited hearing (which with the agreement of both sides, we provided for in our orders). However, it is important to remember that if the appeal was successful, there would need to be a re-trial and against that background, her Honour’s prediction of a 12 month period before the outcome of this case would be certain, is accurate, and provides justification for a refusal of the stay on the basis of the circumstances of the mother and the child.
Thus, while it may not have been open to her Honour to make a definite finding that “the substantive appeal would not be prosecuted in a timely manner” (if she can in fact be said to have made such a finding), this conclusion on our part would not cause us to interfere with her Honour’s ultimate decision. Indeed as we have discussed, the uncertainties surrounding the prosecution of the appeal and the potential for this case to remain unresolved for a considerable period of time in the event that there is to be a new trial, support the refusal to grant a stay having regard to the mother’s circumstances.
Conclusions in relation to the grounds of appeal and the question of whether the appeal will be rendered nugatory
Nothing therefore raised in the grounds of appeal would justify our interference with her Honour’s decision. There is however, an important question for our consideration which was not raised at least squarely by the grounds of appeal, and that is whether the appeal will be rendered nugatory by her Honour’s refusal to stay her order permitting the return of the child to Ireland.
Her Honour’s consideration and conclusions about this question were as follows:
106. The father correctly pointed out that the hardship which the mother may endure if the stay is granted must be weighed up against the hardship to him if it is refused. He emphasised to deny him a stay, in the event of a successful appeal, would render his appeal nugatory or, in effect, make it impossible or impractical to restore the situation. The situation being, to secure the child’s return to Australia. He relied upon the mother’s unsuccessful defence of his Abduction Convention application, as well as her unsuccessful appeal against the return order. He pointed out the parties had engaged in strongly contested litigation in Ireland and Australia which has continued for the best part of two years. Reference was made to the mother’s failure to fully comply with access orders in the later part of 2009. According to the father, he had been informed by an unidentified source, that Australia would not request a child’s return pursuant to the Abduction Convention twice. As to this latter point, the father provided no evidence. However, even if he is correct, this would not stand in the father’s way of himself requesting the child’s return reliant upon the Abduction Convention. The father would, as he has now, have a right of custody and her withholding would be a wrongful retention.
107. The mother referred to the Court’s findings which accepted she was likely to comply with orders, her reasons for noncompliance with orders in late 2009, compliance with orders throughout 2010 and emphasised that reliance could be placed upon the Abduction Convention to secure the child’s return to Australia in the event this was ordered. The mother said she would return the child to Australia if ordered and conceded that if the result of the father’s appeal was that ultimately an order was made for the child to return to Australia and, she failed to do this, prima facie, this would be a wrongful retention within the meaning of the Abduction Convention.
108. By way of additional security, the mother offered her only valuable asset, which is her car. Although I do not have evidence of its current value, at paragraph 268 I identified that the mother’s father paid $10,500.00 for it in early 2010. While in the subsequent 12 months the car may have deteriorated in value, there is no evidence it has been damaged and it is reasonable to infer on sale the car would be worth no less than half its purchase price. While I do not consider it likely the mother would refuse to abide the Court’s orders to return the child to Australia, this sum would provide extra motivation for compliance and, if released to the father in the face of non-compliance, comprise a modest but not insignificant contribution to costs he might incur in securing the child’s return.
109. I contemplated whether to require the mother’s written undertaking she would return the child to Australia in the event she was ordered to do so. However, in the face of her concession she would return the child which is recorded in these reasons and the unenforceable nature of such an undertaking, I decided against doing so.
110. On balance, I am not satisfied that permitting the mother to remove the child from Australia would render a successful appeal nugatory or make it impossible or impractical to secure the child’s return to Australia. While I accept there is a possibility this may involve further litigation and delay, I am satisfied the child would be returned to Australia.
We agree with those conclusions, and accordingly the appeal failed. We emphasise for the father’s benefit that the grant or refusal of a stay is a matter of discretion; irrespective of how any one of us might have determined the stay application in this case, we were not able to find that her Honour’s discretion miscarried having regard to the established principles which govern appellate interference with discretionary decisions. (See for example House v The King (1936) 55 CLR 499.)
Costs
At the conclusion of the hearing of the appeal, we invited submissions in relation to the costs of the appeal. In the event that the appeal failed, which it has, Counsel for the mother sought an order for costs against the father. However, as we did not consider that the appeal was unmeritorious, we decided that there should be no order for costs in relation to the appeal, and ordered accordingly.
I certify that the preceding fifty seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Finn and Ainslie-Wallace JJ) delivered on 24 January 2011.
Associate:
Date: 24 January 2011
Annexure 1: Summary of grounds of appeal as contained in the father’s amended notice of appeal filed 17 January 2011
Erred in finding of facts that are in direct opposition to the findings of facts already determined by the High Court of Ireland.
Erred in finding that it is possible for an Aboriginal child to share and participate in Aboriginal culture from outside of the Aboriginal community.
Erred in giving too much weight to the Family Consultant’s view that the Child would have a “Strong sense of her aboriginal identity even if she lives in Ireland and does not return to Australia until 2014 and thereafter annually”.
Erred in failing to consider the Child’s Aboriginality and culture when ordering sole parental responsibility to the Mother, particularly where “cultural upbringing” is a defined as a “major long-term issue”.
Erred in not giving weight to the mother’s evidence in saying “the only thing she [the child] is at risk of is being pigeon-holed as a low socio-economic Aboriginal”.
Erred in not excusing herself from hearing the proceedings after the father’s application for her to do so.
Erred in preferring the Mother’s evidence over that of the Father’s in globo.
Erred in not accepting to hear the evidenced produced by the father siblings.
Erred to make finding about the father’s siblings without hearing their evidence.
Erred in finding that the Family Consultant spoke positively about the use of Skype without taking into consideration or making reference to the evidence given by the Family Consultant under cross-examination on this issue.
Erred in accepting the mother’s evidence as to the psychological and emotional state of the child as expert evidence.
Erred in finding that the Child’s physical needs had been inadequately addressed when returned to the Mother on 13 November 2009 having regard to “the severity of the nappy rash and weight loss”.
Erred in finding that that the Child had “seriously deteriorated” when returned to the Mother on 13 November 2009.
Erred in finding that the child lost weight.
Erred in finding that the cause of the child losing weight in the period leading up her being returned to the Mother on 13 November 2009 was “loss of appetite or inadequate attention, her need for a lactose free diet, or perhaps a combination of both”.
Erred in finding that the Father refused to allow the Mother to spend time child when they returned to Australia.
Erred in finding that there is a “real risk” that the Child may fear that the Father “would keep her from her mother”.
Erred in finding that the Child could not adjust to overnight periods before 2014.
Erred in finding that the Child was absent from the mother for a 17 day period.
Erred in appearing to positively find that the Paternal Grandfather had sexually abused the Paternal Aunt.
Erred in finding that the Father’s “difficulty” to say he believed his sister’s allegations of sexual abuse was a matter of ‘some significance when determining the Father’s ability to keep the child safe from his Father’.
Erred in finding that the Father had ‘caviled’ and ‘avoided answering the question’ about whether he was ‘20’ or ‘21’ in December 1999.
Erred in finding that relationship between father and child would, if she relocates to Ireland, be able to sustain and develop into a mutually fulfilling one in which she has a strong sense that he is her father and be able to be a mutually fulfilling one, as such a finding is against the weight of the evidence.
Erred in finding that the child would not be unduly troubled by a significant reduction in the frequency of contact or time spent with the Father, particularly given the likelihood that he will remain in Australia (no evidence of this).
Erred in finding that, unless permitted to relocate, there is a ‘real risk’ the Child’s emotional needs will be gradually and increasingly ‘unmet’ by the Mother.
Erred in failing to give sufficient weight to the evidence of Dr. [B].
Erred in placing too much weight upon the issue of “communication”, such as it was at hearing, when allocating sole parental responsibility to the Mother.
Erred in placing too much weight upon the evidence of the Family Consultant that the Mother may have emotional difficulties if she remained in Australia which would affect her parenting of the Child.
Erred in finding that a Safety Order is an equivalent to an AVO without any evidence as to Safety Order’s from an authority in Ireland.
Erred in finding that the safety order was granted to the mother on the basis of an incident in the park.
Erred in making a determination about the safety order whilst it is still be fore the Irish courts of appeal.
Erred in finding that the access schedule in Ireland was over onerous on the mother.
Erred in making no adverse finding against the mother for the numerous breaches of Orders made by her.
Erred in not giving weight to the fact that the mother was served as Penal Endorsement of Ireland after not complying with orders.
Erred in finding that the father falsified testimony for perceived forensic advantage, and inferring from this that the father’s evidence should not be preferred.
Erred in using the fathers decisions during the “17” day period as the sole basis to determine that he does not understand the emotional and psychological needs of the child.
Erred in making negative findings about the father’s character and honesty in giving evidence.
Erred to find that the father has a problem with alcohol.
Erred to find that the child had no negative effects from being away from the father for 5 months.
Erred to find that the mother has a reasonable likelihood to promote a relationship between the child and the father.
Erred in finding that the child’s emotional state is so closely intertwined with the mothers in the long-term.
Erred to finding that the deep vein thrombosis jeopardised the mother’s ability to remain in Australia, even whilst pregnant.
Erred to find that the father gave misleading evidence in the Irish proceedings.
Erred to find that the father’s evidence about the maternal grandmother remaining in Australia was unreliable.
Erred to prefer the evidence of [Ms S] despite her being disciplined by the Psychologists Registration Board for inappropriate behaviour.
Erred to consider the impact of the Global Financial Crisis and the subsequent economic position of Ireland when determining the viability of each parent to support themselves and the child in Ireland.
Erred in not taking measures to ensure the mother complies with Australian orders from Ireland in light of the fact it took 2 full defended hearings under the Hague Convention for child abduction to have the child returned to Australia.
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