Stativa and Stativa

[2012] FMCAfam 910

FEDERAL MAGISTRATES COURT OF AUSTRALIA

STATIVA & STATIVA [2012] FMCAfam 910

FAMILY LAW – Application for stay pending appeal – stay refused.

Aldridge v Keaton (Stay Appeal) (2009) FamCAFC 106
Stativa & Stativa [2012] FamCAFC 51

Applicant: MR STATIVA

Respondent: MS STATIVA

File Number: MLC 9079 of 2009

Judgment of: Hartnett FM

Hearing date: 28 August 2012

Delivered at: Melbourne

Delivered on: 28 August 2012

REPRESENTATION

The Applicant: In person

The Respondent: In person

THE COURT ORDERS THAT:

1. The application of the father for a stay of orders made 2 August 2012 and filed by him on 20 August 2012 is dismissed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Federal Magistrate Hartnett delivered this day will for all publication and reporting purposes be referred to as Stativa & Stativa.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 9079 of 2009

MR STATIVA

Applicant

And

MS STATIVA

Respondent

REASONS FOR JUDGMENT

1. The applicant appellant father seeks, in application filed 20 August 2012, orders as set out by him in his affidavit sworn 20 August 2012 on page 2.  Turning then to that affidavit, the husband seeks the following orders:

   “1. That the mother forthwith surrender and deliver up to the Court all passports currently held by her relating to the child and the mother, by herself, her servants and agents, be and is hereby restrained from applying for or obtaining any further or other passport(s) for the child.

   2. The Court requests that until further order the Australian Federal Police place the name of the child, [X] born [in] 2008 (‘the child”) on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australian in breach of these orders.

   3. Until further order, MS STATIVA born [in] 1972 the mother, by herself, her servants and agents, be and is hereby restrained from removing or attempting to remove or send the child, [X], female, born [in] 2008 (‘the child”) from the Commonwealth of Australia except with agreement with the father AND THAT the name of the child remain on the Airport Watch List [enforced] at all points of arrivals and departure in the Commonwealth of Australia.

   4. The Marshal and all officers of the Australian Federal Police and the police forces of the State and Territories are requested and authorized to give effect to these orders.

   5. Any further or other Orders as deemed appropriate by this Honourable Court.”

2. In support of his application, the applicant father relies upon his affidavit sworn on 20 August 2012 which states the orders that are sought; includes the orders made by the Court on 2 August 2012 which are annexed to the affidavit, and which allow the mother to remove [X] from Australia for the purposes of holidaying in Romania; and sets out the father’s concern for the well being of his daughter, including her safety, her psychological well being and best interests.  Further, the father deposes that the child needs to be protected from being removed from the Commonwealth of Australia and possibly not being returned (in paragraph 5 of that affidavit).  These were all matters raised by the father during the trial of the matter before me on 2 August 2012.

3. When asked by the Court this day, when was there a possible hearing date for the appeal, the applicant father was unable to provide any information in respect thereto.  The respondent mother filed a response on 27 August 2012 in which she effectively sought dismissal of the father’s application and she further filed and relies upon an affidavit sworn by her on 24 August 2012.  She also gave limited oral evidence this day, and the applicant father was afforded an opportunity to cross-examine her as to that limited evidence.

4. The father filed a notice of appeal on 17 August 2012, wherein essentially, he seeks that the orders made on 2 August 2012 be discharged such that the parties’ daughter, [X] born [in] 2008, not be permitted to travel outside the Commonwealth of Australia. 

5. The grounds of appeal, as contained in the applicant father’s notice of appeal are as follows:

   “1. The Appellant asserts that Federal Magistrate erred in her decision whereby failed to follow legal procedure and due diligence and risk assessment when making the Orders 1 to 11 of 2 August 2012, to allow a young child to be removed from the Commonwealth of Australia for a lengthy period of time of over (3) three weeks without showing just cause for that decision to be in the best interests and well-being of the child.

   2. The Appellant asserts that Federal Magistrate erred in her decision in Order 1 where by fail to protect and facilitated removal of the young child from the safety of Commonwealth of Australia by allowing the child to be removed from the Airport Watch List without fathers consent in September and October of 2012 period, placing the child to be at risk to be removed and not returned to Australia.

   3. The Appellant asserts the Federal Magistrate erred in her decision and fail to protect and proper evaluate whether mother’s request for a “holiday” overseas constitutes best interests of the child and child well being.

   4. The Appellant asserts that Federal Magistrate erred in her decision and failed to properly evaluate whether mother’s request for an overseas “holiday” constitute and warrant removal of a four year old child from the safety of Commonwealth of Australia and place it into dangerous overseas country.

   5. The Appellant asserts that Federal Magistrate compromise child well-being by allowing mother’s a request to holiday with the child in a known hotspot for human trafficking, child abduction and female sex slavery without any consideration or protection for the child.

   6. The Appellant that Federal Magistrate erred in her decision whereby fail to protect the child and without consideration for child best interest and child safety in Order (2) disempowered the father from discharging his duty of care and protection for the child, as it is his right to do so as a parent by forcing the father to participate in obtaining passport documents for the child to allow the mother to take a “holiday” with the child to a dangerous overseas destination that has the potential to be harmful to the child safety and well-being and in fathers view not in the best interest of the child.

   7. The Appellant asserts that Federal Magistrate erred in her decision to order father from being able to prevent the child to be placed in danger at overseas destination, to be able to care and protect the child’s best interest.  Federal Magistrate erred in her decision and placed mother’s need’s to have a holiday with the child at the expense of child needs and child’s well-being and safety.  Father asserts that child best interest was not fully considered by the Federal Magistrate and the evidence father provided was ignored without valid reason given.

   8. The Appellant asserts that Federal Magistrate erred in her decision to allow mother contrary to evidence provided by the father proper consideration to evidence put before the court where

   9. The Appellant asserts Federal Magistrate erred in her decision to properly consider on the evidence provided by the father child best interest where mother given the opportunity may relocate and not return the child to Australia.

   10. Federal Magistrate erred in judgment where irresponsible Orders 1 to 11 were made placing the child at risk of being forced into danger without any benefit to the child and their best interest considered.  Federal Magistrate given no consideration to the child should something happen overseas and force the child to be removed from the safety in Australia under a pretense of “holiday” with the mother without stating how this would be in the best interest of the child.  Forcing the child to travel to a dangerous country without promoting their best interest amount to gross injustice.  To facilitate removal of the child from Commonwealth of Australia without consideration of the best interest of the child would make it a travesty of justice.”

The law

1. The applicable principles relating to a stay pending appeal application are as set out in Aldridge v Keaton (Stay Appeal) (2009) FamCAFC 106. There, the Full Court of the Family Court of Australia (‘the Full Court’) said at paragraphs 17 and 18, the following:

   “17. This is an appeal from a discretionary judgment. There are well established principles on the limits on interference by an appellate court with such a judgment (see House v R (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513 ; (1979) FLC 90-716).

   18. The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Ltd [No (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; Clemett & 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 include the following:

   * the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any "special" or "exceptional" circumstances;

   * a person who has obtained a judgment is entitled to the benefit of that judgment;

   * a person who has obtained a judgment is entitled to presume the judgment is correct;

   * the mere filing of an appeal is insufficient to grant a stay;

   * the bona fides of the applicant;

   * a stay may be granted on terms that are fair to all parties -- this may involve a court weighing the balance of convenience and the competing rights of the parties;

   * a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted -- this will be a substantial factor in determining whether it will be appropriate to grant a stay;

   * some preliminary assessment of the strength of the proposed appeal -- whether the appellant has an arguable case;

   * the desirability of limiting the frequency of any change in a child's living arrangements;

   * the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and

   * the best interests of the child the subject of the proceedings are a significant consideration.”

2. In considering the competing applications before the Court, I note that the Court is engaged in an exercise of discretion.  The Court turns now to a consideration of those principles such as they are relevant to this stay application as set out in Aldridge v Keaton (Stay Appeal) (2009) FamCAFC 106, noting the list of principles stated therein are not exhaustive and that the onus for the stay is on the applicant.

The bona fides of the appeal 

1. The Court is satisfied that the applicant father is bona fide in pursuing his rights to appeal the decision in this matter.

Whether there is a risk that the appeal may be rendered nugatory if a stay is not granted

1. The Court takes into account the observations of the Full Court in Aldridge v Keaton (Stay Appeal) (2009) FamCAFC 106, that this is a substantial factor in determining whether it is appropriate to grant a stay, and determines there is a risk that the father’s appeal may be rendered nugatory in the event that a stay is not granted. The father was unable to advise the Court as to when the matter might likely proceed on appeal in the Family Court of Australia but the Court is mindful that the orders made, which are the subject of appeal, provide for the mother to be permitted to travel with [X] in September and/or October of 2012 and that in that short timeframe, the appeal may well not be heard.

2. The Court weighs up that substantial factor as against the other matters to be considered by the Court in reaching its discretionary determination. 

The grounds of appeal

1. Although this is a matter for the Family Court of Australia on appeal, some preliminary assessment of the strengths of the appeal is required here.  The judgment of 2 August 2012 was a discretionary judgment.  The matter was before the Court on that occasion on remittal of the proceedings to this Court from the Family Court of Australia pursuant to a judgment on appeal of Coleman J delivered on 30 March 2012 and reported at Stativa & Stativa [2012] FamCAFC 51. Various orders had been made at first instance by Whelan FM on 18 August 2011. Coleman J set aside orders numbered 13, 14 and 15 of those orders and otherwise dismissed the appeal. The father had appealed the totality of the orders made by Whelan FM and was successful in a limited way, but importantly the appeal was successful in overturning the orders made by the Federal Magistrate which permitted the mother to remove the child from the Commonwealth of Australia. What in essence Coleman J found, was that there was not, either by way of evidence-in-chief from the mother or cross-examination upon the evidence of the father, evidence before the Court in relation to the child [X]’s removal from the Commonwealth. Coleman J found that:

   “Beyond stating her desire to do so, and its basis, and refuting any suggestion that she would not return the child if permitted to remove her, the mother did not adduce evidence in support of the removal of the child from the Commonwealth.”

2. Further, his Honour found that the Federal Magistrate did not adequately consider the issue and indeed, could not have done so, because of the lack of evidence before her.  Coleman J remitted the matter back to this Court providing for each of the parties to file affidavit evidence as to the issue of the mother removing [X] from the Commonwealth of Australia and requested that the matter be heard promptly on remittal to avoid the mother’s application “becoming academic”. 

3. The original orders of Whelan FM were made on 18 August 2011. Those orders were set aside by Coleman J on 30 March 2012 and the matter did not then proceed before me until 2 August 2012. In light of the comments made by the appeal court as to the desirability of hearing the matter promptly, I delivered an ex tempore judgment on 2 August 2012.

4. The mother’s evidence at the trial before me was that she had approved annual leave for the month of September 2012 and wished to travel at that time.  The making of the orders on 2 August 2012 did avoid her application “becoming academic”.  The father has, however, again appealed the making of orders allowing [X] out of the Commonwealth of Australia and made application for a stay. In addition to the evidence contained in the affidavit of the mother in support of her response that the father’s application for a stay be dismissed, the mother gave oral evidence this day to the effect that she had booked travel tickets to depart Australia on 6 September and return on 27 September 2012.  She proposed to travel with the airline [omitted] Airways but had not paid any monies as yet to secure tickets for herself and [X].  She had not done so because her evidence is that she would expend almost $5,000 on tickets which would not be refundable and that she could not afford to make such purchase unless she knew the Court’s decision this day, namely whether she and [X] were permitted to travel.

5. The orders which were made on 2 August 2012 provided in order no. 2:

   “The Father forthwith do all necessary acts and things and sign all necessary documents to obtain a passport for the child.”

   Provision was made in the event of his failure to comply with that order such that a Registrar of this Court (pursuant to s.106A of the Family Law Act1975) could execute the necessary documents for the mother to obtain a passport for the child.

6. The mother’s evidence is that she advised the father that she would go anywhere at any time to bring to him the necessary passport application document for signature.  His response was that he was not available for some days and that the mother could mail the document to him or email it to him.  The father did fail to cooperate with the mother in the obtaining of a passport and it was necessary for the Registrar to act in accordance with the order so that a passport could issue.

7. In the event the stay application was to be acceded to, the mother’s travel with [X] in the 2012 year will become academic.  The mother and [X] will not be present to celebrate the 50 year anniversary of the maternal grandparents being together and nor will there be an opportunity for [X] to re-connect physically with her ailing grandfather.

8. The father’s grounds of appeal essentially re-state what he put before the Court on the hearing of the matter on 2 August 2012.  The father does not like the Court’s assessment of the parties’ evidence nor the weight given to such evidence.  The Court accepted the mother’s evidence that she and [X] would return to the Commonwealth of Australia.  The Court made orders providing for the security of the child’s return.  The father takes issue with the findings made by the Court as to the evidence given by the mother.  The Court observed at trial the mother’s demeanour, heard her evidence, noted her willingness to provide security for the return of the child to the Commonwealth of Australia, and accepted her reasons for wishing to travel with [X] to Romania.  The Court found her a credible witness.

9. The Court set out in its reasons, a consideration of both the mother’s and father’s evidence and accepted that it would be in [X]’s best interests to be able to travel to see her maternal grandparents with whom she had spent some not inconsiderable time in her life and with whom she enjoyed a close and warm relationship.  The Court found for the mother and child to join the maternal grandparents and celebrate with them an important occasion would be in [X]’s best interests.

10. Nothing in the husband’s most recently filed affidavit adds further to the evidence that was before the Court on 2 August 2012.  While this is a preliminary assessment, it is difficult to identify in the grounds of appeal lodged by the husband, any significant merit. Unless it is with his consent, he seeks that [X] never leave the Commonwealth of Australia.

11. The mother should be entitled to the benefit of the judgment in these circumstances, and after a weighing up by the Court of the matters considered in these reasons, one against the other. Accordingly, the application of the father will be dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Date:  30 August 2012