Simmons and Anor and Kingley
[2013] FamCA 568
FAMILY COURT OF AUSTRALIA
| SIMMONS & ANOR AND KINGLEY | [2013] FamCA 568 |
| FAMILY LAW – ORDERS – Stay – Child related proceedings – Where events have overtaken proceedings – Where a new regime has been created – Where a refusal of the application of the stay will not render the appeal nugatory – Whether the appeal proceeds on substantial grounds – Where the application is dismissed. |
Family Law Rules 2004 (Cth) r 22.11
| Aldridge & Keaton [2009] FamCAFC 95 | ||
| 1st APPLICANT: | Mrs Simmons | |
| 2nd APPLICANT: | Mr Simmons |
| RESPONDENT: | Mr Kingley |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Dart of Legal Aid Queensland |
| FILE NUMBER: | BRC | 1363 | of | 2008 |
| DATE DELIVERED: | 2 August 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 30 July 2013 |
REPRESENTATION
| COUNSEL FOR THE 1ST APPLICANT: | Mr Baston |
| COUNSEL FOR THE 2ND APPLICANT: | Mr Baston |
| COUNSEL FOR THE RESPONDENT: | Mr Anderson |
| SOLICITOR FOR THE RESPONDENT: | Smith and Associates |
INDEPENDENT CHILDREN’S LAWYER : | Ms Dart |
Orders
That the Application in a Case filed 12 July 2013 is dismissed.
That in the event that the Respondent seeks an order that the Applicants pay his costs of and incidental to the Application in a Case filed 12 July 2013:
(a)the Respondent file and serve brief written submissions in support of such application for costs within 14 days of the date hereof;
(b)the Applicants file and serve any brief written submissions in answer to any submission filed and served by the Respondent within a further 14 days thereafter;
(c)the Respondent file and serve any brief further written submissions strictly in reply to the submission served by the Applicants within 7 days of its service.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Simmons and Anor & Kingley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 1363 of 2008
| Mrs Simmons and Mr Simmons |
Applicants
And
| Mr Kingley |
Respondent
REASONS FOR JUDGMENT
The trial of the competing parenting Applications in relation to C Arndale-Kingley, born in 2006, (“the child”) took place between 6 and 10 May 2013. On 5 July 2013, I made parenting orders (“the July order”) but did not deliver Reasons for Judgment. These were delivered on 24 July 2013.
On 12 July 2013, Mr and Mrs Simmons (“the Applicants”) filed a Notice of Appeal in relation to the July order. They now seek to stay the operation of that order[1] pending the determination by the Full Court of their appeal.
[1] Pursuant to the Family Law Rules 2004 (Cth) r 22.11(2).
The Applicants intend to apply for an expedited hearing of the appeal following the publication of these Reasons. Counsel advised that, because of the state of the appeal list, they intend to press for a hearing in November 2013 or early 2014.
The terms of the July order have been explained to the child and put into effect. The child has lived with her father (“the Respondent”) since 5 July 2013. She has spent time and communicated with the Applicants in accordance with the terms of the July order. She has resumed attending the school attended by her during 2012.
The principles applicable in a consideration of an application to stay the operation of an order pending the determination of an appeal may be summarised as follows[2]:
[2] Carlin & Carlin (1977) FLC 90-320; Kelly & Kelly (1981) FLC 91-007; Clemett & Clemett (1981) FLC 91-013; Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685; The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Ltd (1986) 160 CLR 220, 230; Jenning Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681; De Lewinski v Director General, New South Wales Department of Community Services (1996) FLC 92-678; JRN & KEN v IEG & BLG (1998) ALJR 1329; Aldridge & Keaton [2009] FamCAFC 95.
a.a person who has obtained a judgment is entitled to the benefit of the judgment and is entitled to presume the judgment is correct;
b.that there can be no stay of proceedings or the enforcement of a decree pending an appeal unless an order is made to that effect and that the mere filing of an appeal is not sufficient to ground a stay recognises that a successful litigant should not be deprived of the benefit of the litigation unless it is appropriate;[3]
[3] Friscioni & Friscioni [2009] FamCAFC 43, [54] referring to Kelly and Kelly (1981) FLC 91-007 per Fogarty J
c.a stay should not be granted as a matter of right but only upon the Court being satisfied that the applicant, who bears the onus of establishing a proper basis for a stay, has made out a ground which justifies, in the circumstances of the case, making an order staying the operation of existing orders;
d.it is not necessary that an applicant for a stay of the operation of an order pending appeal demonstrate “special” or “exceptional” circumstances;
e.a stay may be granted on terms that are fair to all parties and this may involve the weighing and balancing of the convenience and competing rights of each of the parties to the application;
f.in determining whether or not to grant a stay of the operation of an order, it is important to consider the “consequences for a child of granting or refusing a stay” [4] and the child’s best interests are a significant consideration;
[4] EJ K & TSL (No. 2) (2006) 35 Fam LR 590; K & B (2006) FLC 93-288, [32]
g.in determining whether to grant a stay, 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’; [5]
[5] Clemett& Clemett (1981) FLC 91-013, 76,175 per Nygh J
h.in determining whether to grant a stay a Court may consider:
i. the bona fides of the applicant for a stay of the operation of an order pending appeal;
ii. whether there has been any undue delay between the making of the original order and the filing of the application for a stay;
iii. the length of time it will take to the appeal to be heard;
iv. whether refusal of a stay renders a successful appeal nugatory, this being a ‘substantial’ factor;[6]
v. the hardship to an unsuccessful applicant for a stay as weighed against the hardship to an unsuccessful respondent and where the balance of convenience lies;[7]
vi. the grounds of appeal[8] in order to undertake some preliminary assessment of the strength of the proposed appeal and whether the appellant has an arguable case;[9]
i.it may be appropriate to grant a stay, at least for a short period of time, if:
i. the appeal appears to be based on substantial grounds and is not a mere delaying tactic;
ii. if the appeal can be dealt with within a reasonable time; and
iii. the present circumstances of the child are satisfactory.[10]
j.in circumstances where ‘events have overtaken proceedings’, that is where, for example, the orders appealed against have already been put into effect and/or explained to the child and/or ‘a new regime created’,[11] the Court may conclude that staying the operation of the order appealed would not be in the best interests of the child.[12]
[6] Trahn and Long (No 2) [2008] FamCAFC 194
[7] Jenning Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681, 685 per Brennan J; De Lewinski v Director General, New South Wales Department of Community Services (1996) FLC 92-678 per Gummow J.
[8] Carlin (1977) FLC 90-320, 76,696 per Watson SJ
[9] Trahn & Long (No 2) [2008] FamCAFC 194; JRN & KEN v IEG & BLG (1998) ALJR 1329, 1332 per Kirby J
[10] Clemett & Clemett (1981) FLC 91-013, 76,175 per Nygh J
[11] SRS & KLS & Child Representative [2005] FamCA 700 per Kay, Holden & May JJ
[12] CSN v JBN (1998) FLC 92-833
The reality for the child is that she has already been told about the July order and its consequences for her care arrangements, has moved to live with her father and has recommenced attending at the school, which she has told Mrs Simmons she was happy to return to,[13] she attended in 2012. She has started to participate in various activities in the town in which she now lives. Events have clearly overtaken proceedings and “a new regime created”.
[13] Affidavit of Mrs Simmons filed 29 July 2013, paragraph 5
As the child has been told that she will live with her father, the effect of the granting of the stay would necessitate her being told that this is not the case and that she is to return to live with the Applicants and attend the school she has just left. I consider it more likely than not that if this occurred, the child would be exposed to significant confusion about her current and future care arrangements.
Such flux in her care arrangements and attendant likely confusion is not beneficial for her, particularly given the significant changes with which she has had to deal in the last six months.
I accept the force of the statements of the Full Court in Clement to the effect that 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”. Clearly, given that the transition has taken effect, such can best be achieved by refusing the application for stay.
Further, staying the operation of the July order would implement a further change to the child’s custodial arrangements rather than ensure that there is a limitation to the frequency of such changes.
I accept the submission made by the Independent Children’s Lawyer that it is unlikely that a decision in respect of the appeal against the July order would be delivered prior to the end of the year. If the appeal is successful, and a further transition of the primary care of the child becomes necessary as a consequence, such change would, if the stay application is refused, occur after a period of stability for the child.
It is clear from the contents of Mrs Simmons’ affidavit that the child has had an opportunity to interact with her half siblings whilst spending weekend time with the Applicants and that telephone numbers have been exchanged to facilitate communication between the siblings. This reassures me that, as predicted in the Reasons, the child will be afforded the opportunity to spend time and interact with her half siblings whilst she is spending time with the Applicants.
Mrs Simmons gives evidence of a conversation which she says occurred with the father to the effect that he was not going to abide the terms of the July order and/or was minimising his alcohol use and/or was minimising the effect and impact of the Undertaking which requires him to refrain from consuming alcohol for 24 hours before and whilst the child is in his care. Mrs Simmons says that when she spoke to the father by telephone on 10 July 2013 he was “slurring and mumbling and didn’t finish what he was saying before starting another sentence.” She formed the view from this “behaviour” during the telephone conversation that he was drunk. Because of the late provision of this affidavit the Respondent has not had the opportunity to respond to such assertion on oath. I do not know, therefore, whether it is contentious.
It is clear that, in the time since the making of the July order, the Applicants have enlisted the assistance of the maternal grandfather to undertake a form of “surveillance” of the father on the weekend during which the child was spending time with them. He says that, having travelled from his home (which is approximately an hour and a half from the town in which the father lives) to the town in which the father lives, he saw the father under the influence of alcohol. Again, because of the late provision of his affidavit, the Respondent has not had the opportunity to respond to such assertion. I do not know, therefore, whether it is contentious.
What is not in contention, however, is that, at the time of the maternal grandfather’s observations of the father, the child was in the care of the Applicants. Therefore, even on their case, whatever the father’s behaviour on that evening, he had complied with the terms of the Undertaking which restrained him from consuming alcohol at all whilst the child was in his care or for 24 hours prior to her coming into his care.
The Applicants relied on an affidavit of a person who had been employed by the maternal grandfather to conduct surveillance of Ms S. She also has not had the opportunity to respond to the matters contained within the affidavit material relied upon by the Applicants.
Such evidence does nothing more than confirm for me the significant risk that if the child is in the primary care of the Applicants it is likely that she will be subjected to significant enquiry about her father’s behaviour.
I have no difficulty in concluding that the Applicants are bona fide in seeking to stay the operation of the July order. They are completely convinced that it is in the child’s best interests to live primarily with them into the future. Should it be needed, support for such a conclusion can easily be found in the fact that a Notice of Appeal in respect of the July order was filed well prior to my delivering Reasons for judgment and, therefore, without the benefit of an opportunity to ascertain whether there exists, within such Reasons, appealable error.
There has clearly been no delay in filing the Application seeking a stay of the operation of the July order.
Whilst Counsel for the Applicants suggested that the appeal may be able to be heard in November 2013, it is impossible for any party or persons other than the members of the court constituted for the purpose of determining the appeal to know when the court will be in a position to deliver its judgment.
I consider that a refusal of the Application for stay of the operation of the July will not render the appeal nugatory. As the child is already living with the father, if a stay was granted there would need to be a change back to the care circumstances which existed prior to the making of the July order in the same way that, if the appeal is successful, there may be changes made to the child’s living arrangements. It is clear that a future change to her primary care arrangements could be effected should the appeal succeed. It is not, therefore, that the implementation of the July order is “irreversible” in any sense. It would simply be a matter of, possibly, further change for the child if the Applicants are successful.
Given that the child has transitioned into the care of her father and returned to school, I do not think it necessary nor of assistance that I determine whether the filing of the Appeal and Application was a “mere delaying tactic” on the part of the Applicants.
I do not consider that the child has been subjected in any way to anything which might be considered as “almost whimsical changes”. Rather, her transition into the primary care of her father has followed my close consideration of the evidence as expressed in the Reasons for judgment.
I consider it highly likely that, if the stay were granted, the child returned to the Applicants’ primary care and the Applicants failed on the appeal, because of the expiry of time consequent upon this process, there would be an application for a further determination of appropriate parenting orders for the child on the basis that there were circumstances then in existence of a significant difference to those considered by me. Such occurrence would mean that the Respondent, the party entitled to the benefit of the July order, would be, in reality, deprived of the same.
Given these matters and that the child has transitioned into the father’s care I conclude that the balance of convenience lies in a continuation of her current living circumstances whereby she lives with her father attends school in the town in which she lives and engages in activities in the manner to which he deposes.
The Notice of Appeal on 12 July 2013 asserts, in general terms, an error or errors in fact and/or law. The generality of such terms is understandable given that, at that time, I had not delivered Reasons for judgment.
However, it is difficult, without the benefit of a Notice of Appeal within which grounds of appeal have been particularised, to determine the basis upon which the Applicants intend to advance their case. Doing the best that I can, it seems to me that, at this time, the appeal is based on asserted error in the exercise of discretion and/or the manner in which conclusions were made or omitted to be made following the expert evidence. I consider, based on the oral summary provided by Counsel for the Applicants, that the Applicants assert errors of weight and a failure properly to appreciate and consider the import of the evidence of Dr A.
Counsel did not point to any asserted factual error revealed within the Reasons or suggest, during submissions, that the findings I reached were not open to me or were contrary to the evidence.
Having heard Counsel’s outline, I am not persuaded that the appeal proceeds on substantial grounds. I am not persuaded that the Applicants have advanced significant arguments for use on the appeal. Whilst arguable, the grounds amount to a challenge to the exercise of discretion undertaken by a trial judge following the opportunity to observe the witnesses during the course of the trial and to make findings of fact.
Given my finding that the father’s capacity to care for the child is not dependent upon the presence of Ms S,[14] I am not persuaded by whatever changes that may have occurred to Ms S’s employment that a stay is appropriate.
[14] Reasons for Judgement, paragraph 252
For the reasons outlined above, I am not satisfied that the Applicants have made out a ground which justifies, in the circumstances of this case, the making of an order staying the operation of the July order.
I dismiss the application for a stay of the operation of the orders made by me on 5 July 2013.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 2 August 2013.
Associate:
Date: 2 August 2013
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