Stephens & Taylor
[2008] FamCAFC 74
•7 March 2008
FAMILY COURT OF AUSTRALIA
| STEPHENS & TAYLOR | [2008] FamCAFC 74 |
| FAMILY LAW - APPEAL – From decision of Federal Magistrate – refusal to grant stay pending outcome of appeal – order that father spend time with child – father has not seen child since 2002 – child unaware of father’s identity – maternal grandparents filed Notice of Appeal and sought stay of orders – whether stay order is a parenting order – whether best interests of child are paramount consideration – whether Federal Magistrate, in determining stay application, took into account impact on the child if time with father commenced pursuant to order and subsequently ceased in event of successful appeal – Federal Magistrate erred in exercise of discretion – appeal allowed – orders stayed pending completion of appeal. |
| Family Law Act 1975 (Cth) Clemett and Clemett (1981) FLC 91-013 |
| APPELLANTS: | Mrs Stephens & Mr Stephens |
| FIRST RESPONDENT: | Mr Taylor |
| SECOND RESPONDENT: | Ms Stephens |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Ashley Kent |
| FILE NUMBER: | ADM | 1737 | of | 2005 |
| APPEAL NUMBER: | SA | 3 | of | 2008 |
| DATE DELIVERED: | 7 March 2008 |
| PLACE DELIVERED: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 7 March 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 24 January 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 173 |
REPRESENTATION
| COUNSEL FOR THE APPELLANTS: | Ms A Horvat |
| SOLICITOR FOR THE APPELLANTS: | Pederick Lawyers |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr B McQuade |
| SOLICITOR FOR THE FIRST RESPONDENT: | Angela Ferdinandy |
| COUNSEL FOR THE SECOND RESPONDENT: | Ms N Milen |
| SOLICITOR FOR THE SECOND RESPONDENT: | Public Advocate |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms H Leeson |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr A Kent |
Orders
That the appeal be allowed.
That paragraph 1 of the orders made by the Learned Federal Magistrate on 24 January 2008 be set aside.
That the operation of paragraphs 4(a), 4(b), 5, 6, 7 and 8 of the order made by the Learned Federal Magistrate on 3 December 2007 be stayed pending the completion of the hearing of the Notice of Appeal filed on 17 December 2007.
That the Notice of Appeal filed on 12 February 2008 be removed from the active pending cases list.
That the costs of the appeal be adjourned to the hearing of the appeal against the orders made by the Learned Federal Magistrate on 3 December 2007.
IT IS NOTED that publication of this judgment under the pseudonym Stephens v Taylor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADM 1737 OF 2005
APPEAL NUMBER: SA 3 OF 2008
| MR & MRS STEPHENS |
Applicants
And
| MR TAYLOR |
First Respondent
MS STEPHENS
Second Respondent
EX TEMPORE REASONS
Background
Before me is a Notice of Appeal filed on 12 February 2008 appealing against paragraph 1 of the order made by Federal Magistrate Lindsay on 24 January 2008. That order was an order whereby the Learned Federal Magistrate refused an application for a stay pending an appeal against orders made by that same Learned Federal Magistrate on 3 December 2007.
The proceedings concerned an application in relation to the child J born in December 2001. The issue before the Learned Federal Magistrate, which resulted in his Honour's orders of 3 December 2007, was whether the child should ultimately spend time with her father, but complicated by the circumstance that the father had not seen the child since 2002 and the child was not in fact aware that he was her father.
The trial of that issue proceeded before the Learned Federal Magistrate on 5 and 6 February 2007 and final submissions were then made on 9 July 2007. His Honour delivered his reasons for judgment on 3 December 2007.
His Honour ordered that the maternal grandparents and the mother do all things reasonably required to facilitate the father spending time with the child in a graduated way. Firstly, over three periods of two hours, by way of familiarisation sessions, being periods supervised at all times by Ms S, who was the expert witness who gave evidence in the proceedings, and also exercised in the presence of the maternal grandparents or either of them or their nominee. Thereafter the father was to spend time with the child between the hours of 10:00am and 4:00pm each second Sunday, for a period of six months, the first three of such periods to be exercised in the presence of the maternal grandparents, or either of them or their nominee, with the balance of all such periods to be exercised in the absence of such persons.
Then there was a further order made by the Learned Federal Magistrate that, upon the expiration of the last period of time spent pursuant to those orders, the maternal grandparents, the father, and the mother attend upon Ms S for the purposes of the preparation of a report as to the operation of the orders providing for the father to spend time with the child. The Learned Federal Magistrate then adjourned the father's application to spend time with the said child to 3 October 2008.
The maternal grandparents filed a Notice of Appeal against those orders made by the Learned Federal Magistrate on 17 December 2007. That appeal is listed for hearing in this Court in the week commencing 19 May 2008 and it is likely to be heard on Friday 23 May 2008.
It was in relation to that pending appeal that the appellants in that appeal, namely the maternal grandparents, made an application seeking a stay of the orders made by the Learned Federal Magistrate. To repeat, that application was refused and now the appeal against those orders is before me today.
The Notice of Appeal sets out the following grounds of appeal:
“Ground 1 The Learned Magistrate whilst accepting:-
(a)that the appellant’s appeal was not merely a delaying tactic;
(b)that the appeal appeared to be based on substantial grounds;
(c)the appeal could be heard within a reasonable timeframe;
(d)the child’s current circumstances were satisfactory;
gave insufficient weight to the above matters when refusing the application for a stay of paragraphs 4(a), 4(b), 5, 6, 7 and 8 of 3 December 2007.
Ground 2The Federal Magistrate erred in the exercise of his discretion in considering further delay of the face-to-face introduction was a greater risk than the probability that the child might learn the identity of the father through implementation of the spending time with periods.
Ground 3The Learned Federal Magistrate gave insufficient weight to the risk of emotional harm to the child that might occur should the orders of 3 December 2007 begin and then cease should the appellants be successful in their appeal.
Ground 4The Learned Federal Magistrate erred in his discretion in that he gave no weight to the status quo namely the fact that the child not only had no relationship with her father but she did not even know the existence of her father and that she had been cared for by the maternal grandparents since birth for the bulk of her life.
Ground 5The Learned Federal Magistrate erred in the exercise of his discretion in that he failed to give sufficient weight to the welfare of the child in refusing to grant a stay of paragraphs 4(a), 4(b), 5, 5, [sic] 7 and 8 of the orders of 3 December 2007.”
The Notice of Appeal was drawn in somewhat of a confusing way, in that the grounds of appeal were annexed. If I go to the annexure though, that is a document headed “Notice of Appeal”, with three paragraphs, and then there is a heading “Grounds of Appeal”, with five grounds identified. The appellants' counsel invited me to ignore the first part of that annexure and she has confirmed that the grounds of appeal are those under the heading “Grounds of Appeal”.
It was intended that this appeal be heard on 6 March 2008 and the usual directions were made to prepare the matter for hearing on that date but unfortunately the reasons for judgment of the Learned Federal Magistrate only became available on or about 5 March 2008. Thus, the appeal was not able to proceed on 6 March 2008. However, fortuitously there was time to hear the appeal today and with the agreement of counsel that has occurred but without the benefit of the usual outlines of argument from counsel being filed. Counsel have thus presented their arguments to the court orally. I can say that each of those submissions has been of much assistance to the court.
The relevant law
In this case there appears to be no dispute about the relevant law. Indeed the law in this area has been settled for some time, although an interesting issue has now emerged which the Learned Federal Magistrate himself commented on. That is, whether an order for a stay is in fact a parenting order such that the best interests of the child, if the proceedings involve a child, are to be considered as the paramount consideration. If it is not such an order then those interests would be given significant weight as opposed to being regarded as the paramount consideration.
In the end result the Learned Federal Magistrate did not consider it necessary to reach a conclusion on that particular issue, and nor do I. The Learned Federal Magistrate was able to proceed, and he did, on the basis that the best interests of the child, if not the paramount consideration, must certainly be given significant weight. I propose to approach the case in the same way.
The relevant principles are those espoused in Clemett and Clemett (1981) FLC 91-013 and in particular I refer to what Nygh J said at p.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.”
I also refer to the Full Court decision of EJK v TSL (No 2) (2006) 35 Fam LR 590. There, after referring to the principles espoused in Clemett and Clemett the Full Court went on and said this at paragraph 17:
“Although we note that this decision pre-dates the Family Law Reform Act (Cth) when the whole of Part VII of the Family Law Act 1995 (Cth) (‘the Act’) was subject to ‘the best interests test’, we accept the principles espoused are relevant to this application, and the child’s best interests, even if not the paramount consideration, on the facts of this case are a significant consideration. The importance of the consequences for a child of granting or refusing a stay are well recognised. In JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332 Kirby J said:
‘In my opinion, some adaptation of the rules stated in the cases governing stays in this Court must also occur in cases which affect significantly third parties who are not parties before the Court and, in particular, children whose welfare must always be in the mind of a court in making an order affecting their interests.”
There were a number of other cases cited by the Learned Federal Magistrate and a number of other cases relied upon by the appellants' counsel before me. However, I do not consider it necessary to refer to any authority beyond Clemett and EJK v TSL. Those cases encapsulate the principles that the Learned Federal Magistrate was required to apply in this matter. In that regard I note that there is no ground of appeal that the Learned Federal Magistrate made an error of law. It seems to be common ground that the Learned Federal Magistrate was aware of the relevant principles, but the issue is his application of those principles, or rather one particular principle, to the facts of this case. It is said that his Honour erred in his application of that principle.
The Learned Federal Magistrate’s reasons for judgment
After referring to the relevant authorities the Learned Federal Magistrate then addressed the principles espoused in Clemett, firstly in relation to whether the appeal was based on “substantial grounds”. The Learned Federal Magistrate described the appeal as an orthodox appeal and importantly said there was no basis for him to proceed other than on the basis that the appeal is based on “substantial grounds”. His Honour did not consider it appropriate to enter into an evaluation of the merits of the appeal.
His Honour then considered whether the appeal was a “mere delaying tactic”. In the end result, although noting his reservations expressed in his reasons for judgment delivered on 3 December 2007, he considered it would also be inappropriate for him to proceed on the basis of any assumption that the appeal was made on anything other than a bona fide basis.
The Learned Federal Magistrate then considered whether the appeal could be heard in reasonable time. On the basis that it could be heard within four to six months, his Honour considered that that requirement was satisfied.
The next issue that his Honour turned his mind to was the hardship to the respondent in granting a stay, compared to the hardship to the appellant of refusing the stay. However, his Honour did not consider that to be a factor that should necessarily guide his determination of the application and he felt it was more pertinent to focus on matters relating to the best interests of the child, and the child’s present circumstances. This then is the nub of this case.
His Honour said that the child was being cared for satisfactorily by her grandparents in all respects, other than relationship issues relating to her parents.
Neither parent had a relationship with this child, and indeed she does not know who her father is.
In further discussing this issue the Learned Federal Magistrate considered the delay that had occurred to date in the proceedings, the proceedings having been commenced in December 2005. He highlighted that an important consideration in his view was that the effect of the grant of a stay would be to delay the commencement of the process that he put in place by his orders of 3 December 2007 - namely, a process of reintroduction of the child to her father - and he postulated that that delay would be a further four to six months, bearing in mind the time frame that he was proceeding on in terms of when the appeal against his orders of 3 December 2007 would be heard.
He made the point that this delay must be seen against the background of the delays that had occurred previously and, in particular, the delay in the father himself instituting proceedings, given that it was in 2002 that he last saw the child.
In any event his Honour then considered the submissions made by counsel and in particular he indicated that in his view it was correct for Mr McQuade, counsel for the respondent, to put to him that this was not a matter where the refusal to grant the stay would render the appeal nugatory. The Learned Federal Magistrate then went on, though, to find that there was merit in the submission made by counsel for the Independent Children’s Lawyer that there was a risk - and indeed the Learned Federal Magistrate put it as high as a probability - that the process contemplated by the orders he had made would result in the child having some knowledge of the identity of her father.
In the end result his Honour saw his decision as being which is the greater risk, namely, the risk posed by the delay that would occur in granting the stay, that risk being the effect of that delay upon the reintroduction of the child to her father compared with the risk of the child learning the identity of her father. The Learned Federal Magistrate determined that the greater risk was the former and that her best interests dictated that there be no further delay in commencing a process of reintroducing the child to her father. I quote from paragraph 28 of the Learned Federal Magistrate’s reasons for judgment, where he said this:
“Considering the matter from the perspective of what is in the best interests of the child, it seems to me that there is a greater risk, in the true sense of the word - that is, a matter going to the welfare or best interests of the child - involved in there being a further delay against the background of the delays there have already been in the matter, in implementing the orders that have been made after all of the evidence has been considered. There is a greater risk in that delay to the best interests of the child than there is in the probability, as I found, that the process might result in the child's cognisance of the existence of, or her relationship with, her father undergoing some transformation.”
On that basis the Learned Federal Magistrate dismissed the application for a stay.
Grounds of appeal
Ground 1
“Ground 1The Learned Magistrate whilst accepting:-
(a)that the appellant’s appeal was not merely a delaying tactic;
(b)that the appeal appeared to be based on substantial grounds;
(c)the appeal could be heard within a reasonable timeframe;
(d)the child’s current circumstances were satisfactory;
gave insufficient weight to the above matters when refusing the application for a stay of paragraphs 4(a), 4(b), 5, 6, 7 and 8 of 3 December 2007.”
Ground 1 in effect complained that the Learned Federal Magistrate had given insufficient weight to the principles espoused in Clemett and Clemett when refusing the application for a stay. However, this ground cannot succeed.
In the course of the submissions of the appellants' counsel it was conceded that indeed, in relation to (d) in this ground, the Learned Federal Magistrate had not found, in all respects, that the child's current circumstances were satisfactory. I have referred earlier to that, and to repeat, his Honour found that certainly in terms of her care, the child was being satisfactorily looked after but that there were issues in respect of her relationship with her parents and, indirectly, with her grandparents, and that allowed him to refuse the stay.
Grounds 2 and 3
Grounds 2 and 3 of the notice of appeal, highlight what is, to my mind, the nub of this appeal:
“Ground 2The Federal Magistrate erred in the exercise of his discretion in considering further delay of the face-to-face introduction was a greater risk than the probability that the child might learn the identity of the father through implementation of the spending time with periods.
Ground 3The Learned Federal Magistrate gave insufficient weight to the risk of emotional harm to the child that might occur should the orders of 3 December 2007 begin and then cease should the appellants be successful in their appeal.”
The Learned Federal Magistrate, of course, gave consideration to the competing risks as described in ground 2, but what is complained about is that the Learned Federal Magistrate did not address the effect on the child or the impact upon the child if the orders of 3 December 2007 were to commence but then cease, in the event of the appeal being successful.
The question then needs to be asked: "Was there any evidence of the impact upon the child of that occurrence?" Mr McQuade for the respondent has submitted that there was no such evidence presented to the Learned Federal Magistrate, either in the substantive hearing or on the hearing of the application for a stay. I do not know that that proposition is necessarily argued with. What is put though, is that the Learned Federal Magistrate appears to have accepted the merit of the submissions made by the counsel for the Independent Children’s Lawyer in relation to this topic and he should have then acted on that basis.
I refer to paragraph 22 of the Learned Federal Magistrate’s reasons for judgment and also to pages 11 to 12 of the transcript of the hearing before the Learned Federal Magistrate, where Mr Bowler, counsel for the Independent Children’s Lawyer, makes these submissions:
“It is all hypothetical, your Honour, but if [J] comes to understand Mr [Taylor] is her father, you can't imagine she's not going to be curious about him. If she has that knowledge, and the appeal is then successful, what do we then do with a child who knows she has got a biological father but one she is having no contact with or not seeing? I think, with respect, that's the issue your Honour needs to determine. I can't in a sense answer that question, I suppose, with respect, any more than can your Honour, but I think there is the potential for distress to this child and perhaps no higher, but possibly trauma, as a consequence of coming to an understanding that Mr [Taylor] is her father and then the orders that she spend time with him being suspended or discharged indefinitely.”
In the context of the Learned Federal Magistrate’s reasons for judgment, it seems to me a reasonable proposition that he did accept that submission; namely, that there was a potential for distress or trauma to the child in the event of the orders commencing but then ceasing if the appeal were successful. The complaint that is made about the Learned Federal Magistrate’s decision is that he did not take that into account, sufficiently or at all, in determining the application for a stay. There is merit in that submission and I consider the Learned Federal Magistrate has erred in the exercise of his discretion.
If the stay is refused and the orders commence, and the child then comes to appreciate that her father is in fact her father, and then there is a successful appeal, there is then no turning back. Thus the appeal in that sense would be rendered nugatory.
For those reasons I would allow the appeal.
I certify that the preceding 35 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 7 March 2008.
Associate
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