Sotto and Hensley (No.2)

[2020] FCCA 32

FEDERAL CIRCUIT COURT OF AUSTRALIA

SOTTO & HENSLEY (No.2) [2020] FCCA 32

Catchwords:
FAMILY LAW – Parenting – Application for a stay of a name change order made by the Court in October 2019 – where father is of the view that if the orders are not stayed, the change will be implemented, and it will significantly prejudice his case in the forthcoming appeal making it nugatory – where the mother has not yet implemented the change –  where the appeal is not rendered nugatory by the non-granting of the stay – where the child’s views bear significantly upon the matter – Application for stay declined – Application in a Case dismissed.

Legislation:

Family Law Act 1975 (Cth), s.45

Cases cited:

Kelly & Kelly (1981) FLC 91-007

Other materials:

CCH Family Law in Practice Volume 2, paragraph 53.330

Applicant: MR SOTTO

Respondent: MS HENSLEY

File Number: MLC 4210 of 2007

Judgment of: Judge Burchardt

Hearing date: 8 January 2020

Date of Last Submission: 8 January 2020

Delivered at: Melbourne

Delivered on: 8 January 2020

REPRESENTATION

Counsel for the Applicant: Mr Gardiner

Solicitors for the Applicant: Dandenong Family Lawyers

Counsel for the Respondent: In person

Solicitors for the Respondent: Not applicable

ORDERS

1. The Application in a Case filed 4 December 2019 is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 4210 of 2007

MR SOTTO

Applicant

And

MS HENSLEY

Respondent

REASONS FOR JUDGMENT

1. The matter before the Court is an Application to stay the operation of an Order I made in October last year which permitted the mother to seek a change of name on behalf of the child who has been the subject of litigation since 2007.

2. It is appropriate to make a few introductory remarks about the nature of the test to be applied in applications for a stay.  In the CCH Family Law in Practice Volume 2, at paragraph 53.330, the learned authors say as follows:

   It is clear from the terms of r 22.11(1) that the basic principle is that there be no stay of proceedings or the enforcement of the order pending an appeal unless the contrary is ordered.  This upholds the well recognised principle that a successful litigant should not be deprived of the fruits of his litigation without good cause.  In keeping with this general principle, the terms of these rules make it clear that an order for a stay is wholly discretionary. In Kelly & Kelly (1981) FLC 91-007, Fogarty J said, having considered two earlier Victorian cases considering stays of execution, that a stay should not be granted as a matter of course, but only when “appropriate”( or “special”) circumstances can be established. This accords with the principle followed in common law courts generally.

   The circumstances that will justify an order for a stay will naturally vary from case to case.  The strongest ground is usually the real risk that to deny a stay will render a successful appeal nugatory or will make it impossible or impracticable to restore the situation presently existing.

3. A bit further on on the same page, the authors go on to say:

   Further considerations that may properly be taken into account in deciding whether to grant a stay include the grounds and merits of the appeal.

4. I gave my judgment on 23 October 2019.  It should be noted that the case outline filed by the Independent Children's Lawyer supported the mother being granted leave to change the name, and the Independent Children's Lawyer’s submission, inter alia, said the following – when I say submission, I mean the outline of case document.  Under the heading “CHILD, X’s VIEWS”, there is recorded the following:

   The Independent Children's Lawyer spoke to the child X on Friday, 11 October 2019.  The Independent Children's Lawyer explained his role to X, which role X seemed familiar with.  Secondly, the Independent Children's Lawyer asked X for her views on future dealings with the father.  X was adamant that she wanted no contact of any kind with her father or any contact by him with her doctors and school.  She also wanted a name change from “Sotto” to “Hensley”.  I put to X the father’s proposed orders contained in his Amended Application.  X said she did not want any of them.  During our meeting, X gave me a hand-written document which sets out her views in this matter.  Annexed hereto and marked “A” is copy of this document.

5. I incorporated the terms of the correspondence from X in my judgment but, for the moment, I would read out paragraph 18 which, I think, is the relevant paragraph.  I note that in paragraph 17 I recorded:

   17. It was submitted that I should not give weight to the child’s views, and counsel pointed to the concern that arises in circumstances where the net effect of this Order and, indeed, the other Orders being made, would be to deprive the child of any meaningful contact with her father and his heritage.  There is force in all of those submissions, and I accept the force of those submissions.  The mother’s position is that the name should, perhaps, be hyphenated, but the child’s views, disturbingly expressed as they are, could not be clearer.

6. In paragraph 18, I recorded;

   18. I appreciate the way the father would very naturally see it, and, from his perspective, all the things he says make eminent sense, but we have to confront the child’s age and the significant ways in which her views are expressed.  The authorities make it clear that the question of a change of name is all about the child’s best interests first and last.  She has obviously aligned herself with her mother and her mother’s family’s name.  For reasons not, to my mind, entirely clear, she has a surprising detestation and disturbing detestation of her current surname, but, in my view, her views should prevail and her name should be changed to Hensley, for all the difficulties that might reasonably be thought to potentially engender.

7. The Amended Notice of Appeal from which, I suspect, for today’s purposes, only grounds 1 and 5 may be particularly relevant, are first that the learned trial judge failed to afford the father procedural fairness and fifth, the learned trial judge erred in making orders changing the child’s name by 5.1, treating as determinative or giving too much weight to the child’s views;  5.2, failing to consider or failing to adequately consider the strength and duration of the child’s views, their basis and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the Court and their longer-term implications, and/or failing to consider or failing to adequately consider the background of the child and either of the child’s parents.

RECORDED: NOT TRANSCRIBED

1. The Affidavit in support of the Application for a stay filed by the father relevantly reads, at paragraphs 9 to 12, as follows:

   9. The orders I seek stayed refer only to the immediate issue of changing X’s name.  I am concerned that in the event those orders are not stayed, the change will be implemented, and it will significantly prejudice my case in the forthcoming appeal making it nugatory.

   10. I am confident that I have a reasonable chance of succeeding in the appeal and thereby setting aside the orders that change X’s name, the effect of which will be maintaining the status quo.

   11. If I am unsuccessful in my appeal, there is no evidence filed in the proceedings to indicate, and I do not consider that X would be harmed by delaying the change of her name by the period it may take to determine the appeal. 

   12. If the status quo is maintained, it will not prejudice Ms Hensley’s case in responding to my Notice of Appeal.

2. I note paragraph 15 of this Affidavit erroneously asserts at paragraph 15.1 that neither party nor the ICL made any application for X’s name to be changed the way that the order was then made.  As I indicate, while the Independent Children’s Lawyer’s document was perhaps opaque, it did not, in terms, obstruct the order that was made.  Perhaps more importantly, the suggestion in paragraph 16 that the reasons do not contain any reference to the impact of the change of name on her cultural identity is, in my view, incorrect also, because I expressly referred to it in the passage I have read out.

3. The difficulty I have with this case can be put shortly. The reason why I proceeded under section 45 of the Family Law Act 1975 (Cth) was because I had, in the face of the child’s expressed views to the Independent Children's Lawyer, which were consistent with her views a year earlier to Ms A at the section 11F report, and the deeply disturbing and distressing correspondence she had addressed to the Court, raised the obvious prospect that the father’s case was untenable. And, indeed, having given notice that I would proceed under section 45 or, at least, was considering doing so, and heard submissions as to whether I should or should not, I did, and I formed the conclusion that I reached.

4. Taking the two grounds that might be thought most particularly to operate, namely whether the appeal is rendered nugatory and the likely success or otherwise of the appeal, if I do not grant a stay the mother will change the name.  This is what the child has said she wants.  She is 13 and a half and mature for her age.  Her material presented to the Court suggests that it is causing her acute discomfort, to put it at its lowest, to be having the surname that she presently has.

5. In the event that I do not grant the stay and the appeal is successful, then the mother will simply be ordered to change it back.  There is no practical impediment to that occurring.  The appeal will take some time, although we have no idea how long.  The child wants her name changed now.  The appeal is not rendered nugatory by the non-granting of the stay.  The child’s wishes, in my view, bear significantly upon the matter.

6. And, secondly, bearing in mind that, of course, my views are in no way determinative of the appeal, which will be a matter for the Appeal Court, looking at the grounds of appeal on the necessarily impressionistic basis that obtains in these circumstances, I regret to say that I think the chances of success in the appeal are not good, but are negligible.

7. The child’s correspondence – and I acknowledged this in my actual judgment – is, while deeply disturbing, in the circumstances, incontrovertible.  The Appeal Court may come to a different view.  That is a matter for the Appeal Court, of course.  But I am quite unpersuaded that the chance of success on appeal are, in any sense, good.  To the contrary, I think they are extremely slim at best.

8. In all these circumstances, I decline to grant a stay.  The application in a case will be dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  9 January 2020