Strahan and Strahan (Stay)
[2009] FamCA 1238
•15 December 2009
FAMILY COURT OF AUSTRALIA
| STRAHAN & STRAHAN (STAY) | [2009] FamCA 1238 |
| FAMILY LAW – ORDER – stay – application by the wife seeking a stay of interim parenting orders pending the determination of an appeal – whether the wife has an arguable case – whether the application for a stay is bona fides – consideration of the best interests of the child – consideration of the hardship to the wife if the stay is refused compared with the hardship to the husband if the stay is granted – whether the failure to grant a stay would render a successful appeal nugatory – stay granted |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) rr 1.13 & 22.11 |
| Strahan & Strahan (Disqualification) [2009] FamCAFC 204 EJK & TSL (No 4) [2006] FamCA 1022 |
| APPLICANT: | Ms Strahan |
| RESPONDENT: | Mr Strahan |
| INDEPENDENT CHILDREN’S LAWYER: | Ann Bills & Associates |
| FILE NUMBER: | ADF | 228 | of | 2005 |
| DATE DELIVERED: | 15 December 2009 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 24 November 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Pyke QC with Mr Holland |
| SOLICITOR FOR THE APPLICANT: | Pederick Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Ackman QC with Ms MacMillan SC |
| SOLICITOR FOR THE RESPONDENT: | Robinson & Mason |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mrs West |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ann Bills & Associates |
Orders
That pending the determination of the wife’s appeal paragraph 1 of the order of the Honourable Justice Strickland of 5 November 2009 be stayed upon the following condition:
(a)That the wife diligently prosecute her pending appeal in respect of the orders made on 5 November 2009 without delay.
IT IS NOTED that publication of this judgment under the pseudonym Strahan & Strahan (Stay) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADF 228 of 2008
| MS STRAHAN |
Applicant
And
| MR STRAHAN |
Respondent
REASONS FOR JUDGMENT
Introduction
By Application in a Case filed on 13 November 2009, Ms Strahan (“the wife”) sought that the order of His Honour Justice Strickland made on 5 November 2009 be “stayed pending further order”.The affidavit of her solicitor filed at the same time as the application indicated that the stay was sought pending an appeal.
The application also sought other orders in relation to the wife’s proposed travel overseas, but at the hearing of the application the wife informed the Court that her travel plans had changed. It was therefore not necessary for the Court to consider the orders sought by the wife in relation to paragraphs 2 and 3 of the Application in a Case.
Paragraph 1 of the order of His Honour Justice Strickland of 5 November 2009 provided:
“1. That until further order the husband spend time with the child [S] born […] June 1996 on the following basis:
a.that the husband be at liberty to attend at [P School] at such day and time as may be agreed between the husband and the principal of [P School] PROVIDED THAT:
ii)there be no more than two occasions each week; [sic]
iii)that the husband is not to remove [the child] from the school grounds;
iv)that the time [the child] spends with the husband be as agreed between the husband and the principal;
b.that neither the wife or [the child] be advised of the husband’s proposed attendance at the school.”
Hearing
The application for the stay also requested an urgent hearing. Originally the application was listed before His Honour Justice Strickland on 19 November 2009 at 10.00 am. On 18 November 2009 the Full Court (May, Boland and Thackray JJ) delivered judgment in an appeal from the orders of Justice Strickland of 13 March 2009 (in which his Honour dismissed the wife’s application filed on 20 January 2009 that he disqualify himself from further hearing the matter on the ground of apprehended bias). The Full Court allowed the appeal and ordered that “the hearing of all matters in these proceedings be listed before a Judge other than the Honourable Justice Strickland”. (Strahan & Strahan (Disqualification) [2009] FamCAFC 204).
The Rules provide that an application for a stay pending appeal must be heard by the Judge who made the order under appeal (Rule 22.11(3)). However, Rule 1.13 also provides that if the particular Judicial Officer is unavailable the application may be listed before another Judicial Officer. Arrangements were made for the matter to be heard by me, the matter being listed and heard on 24 November 2009. The application was heard by me without any opposition from the parties.
Both parties were present at the hearing. The applicant wife was represented by Ms Pyke, QC with Mr Holland. The husband was represented by Mr Ackman, QC and Ms MacMillan, now SC. The Independent Children’s Lawyer was represented by Mrs West of counsel.
Background
As the Full Court said in its judgment of 18 November 2009 the proceedings between the parties have a long history (paragraph 7).
The proceedings before the Court concern the child S born in June 1996, who was therefore aged 13 when matters were before His Honour Justice Strickland in August and October 2009.
The parties were married in 1994 and separated in January 2005.
Proceedings concerning the child and property settlement proceedings were commenced in 2005. Final orders were made in relation to the child by His Honour Justice Bell on 5 March 2007. The property settlement proceedings have been prolonged whilst the parties prepare the matter for trial.
Fresh proceedings concerning the child were commenced on the 27 August 2007. Since that time there have been numerous interim applications and interim orders relating to the child.
It is necessary to understand the context of the present interim orders concerning the child. Except for a very brief meeting with the child, the husband has not spent any time with the child since December 2007. Since that time there have been orders made attempting to make arrangements which would allow the child to spend time with his father.
The evidence before Justice Strickland included the reports of Dr C of the 9 August 2009 and 16 October 2009. Dr C is an independent psychologist who has prepared reports concerning the child.
The child has a significant generalised intellectual disability in the moderately severe range and has been acknowledged as autistic and requiring significant supervision and assistance.
On the 5 November 2009 His Honour Justice Strickland made the orders which are the subject of appeal (see paragraph 3).
By Notice of Appeal filed on 13 November 2009 the wife sought orders which included an order that paragraph 1 of the orders of Justice Strickland made on 5 November 2009 be discharged.
The grounds of appeal in relation to the father spending time with the child were as follows:
“1. The learned Trial Judge erred in making orders for the husband to spend time with [the child] at school and that [the child] not be advised of the husband’s proposed attendance at school. Such order was not in the best interests of [the child] and failed to pay any or sufficient regard to the special needs of [the child], an autistic child.
2. The learned Trial Judge failed to pay any or sufficient regard to the concerns expressed by the wife about the impact and risk of adverse reaction of the father spending time with [the child] at school
·upon [the child],
·upon [the child’s] attendance at school,
·upon the wife and
·upon the relationship between the wife and [the child].
…
11. The learned Trial Judge erred in making the orders for [the child] to spend time with his father on an interlocutory basis without the opportunity to fully test the opinion and conclusion of Dr [C] and the potential impact of such time at school upon [the child] and the wife, which are matters more appropriately to be determined upon the final hearing of children’s issues.”
The Application in a Case which his Honour was considering was the application filed by the husband on 24 August 2009. Paragraph 1 sought the following orders:
“1. That the husband have time with the child [S] born […] June 1996 on the following basis:
a.That the husband be at liberty to attend at [P School] at such day and time as may be agreed by the husband and the principal of [P School];
b.That neither the wife or [the child] be advised of the husband’s proposed attendance at the school.”
The wife responded to the application by Response filed on 13 October 2009 in which she sought the dismissal of the husband’s application.
The wife also sought an order that the parties attend mediation.
Justice Strickland heard the application on 26 August 2009. He gave reasons for adjourning the matter to 20 October 2009. On that day his Honour heard submissions and reserved judgment, which he delivered on 5 November 2009 making the following orders:
“1. That the husband have time with the child [S] born […] June 1996 on the following basis:
a.That the husband be at liberty to attend at [P School] at such day and time as may be agreed by the husband and the principal of [P School];
b.That neither the wife or [the child] be advised of the husband’s proposed attendance at the school.
2. That the Application in a Case filed by the husband on 24 August 2009 and the Response filed by the wife on 13 October 2009 be dismissed and removed from the active pending cases list.
3. That the issue of ongoing time to be spent be adjourned to a date to be fixed after 8 December 2009.
4. That the wife be restrained and an injunction be granted restraining her from taking the child of the marriage [S] born […] June 1996 overseas at any time prior to the commencement of the school holidays on 8 December 2009.”
On 5 November 2009 his Honour also delivered ex-tempore reasons in relation to the associated Application in a Case filed by the husband on 29 October 2009 wherein he sought an injunction restraining the wife from taking the child out of school prior to the commencement of school holidays on 8 December 2009.
The wife opposed that order and was seeking to travel with the child to Italy and Switzerland from 13 November 2009 to Friday 4 December 2009. His Honour granted the injunction sought by the husband.
The wife does not maintain that the child should not spend time with his father rather that arrangements should be put in place so that this occurs in a manner that she says promotes, or does not endanger, the child’s welfare.
The Law
Counsel for the appellant specifically referred to the authorities of Waite and Waite-Hollins & Anor (2007) FLC 93-325 and K and B (2006) FLC 93-288. She also referred to Carlin and Carlin (1977) FLC 90-320 and Kelly and Kelly (1981) FLC 91-007 and Molier and Van Wyk (No 2) (1981) FLC 91-001.
Counsel for the respondent husband also referred to Carlin and Carlin (supra), K and B (supra) and directed the Court’s attention to CCH section on “Stays pending an appeal 53-300 and following”.
Rule 22.11 of the Family Law Rules 2004 (Cth) provides:
“Stay
(1) The filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision.
(2) If an appeal has been started, or a party has applied for leave to appeal against an order, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application relates.
(3) An application for a stay must be filed in the Registry in which the order under appeal was made and be heard by the Judge, Federal Magistrate or Magistrate who made the order under appeal.
Note 1 Under subsection 55 (3) of the Act, a divorce order is stayed until after an appeal against it is determined or discontinued.
Note 2 An application for a stay may be listed before another judicial officer if the judicial officer who made the order under appeal is unavailable (see rule 1.13).”
It is clear that simply filing a notice of appeal does not stay the orders which are the subject of the appeal. In the matter of Carlin and Carlin (supra) it was emphasised that ordinarily a successful litigant would not be deprived of the fruits of litigation (see Watson SJ at 76,696).
In the recent Full Court case of Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106, the Full Court was considering an appeal from the refusal of the Chief Federal Magistrate to stay parenting orders. In that judgment the Full Court (Bryant CJ, Boland and Crisford JJ) set out the relevant principles at paragraph 18:
“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 Limited [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited (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.”
On the same day a different Full Court (Warnick, May and Boland JJ) delivered the judgment of Gull & Gull (Stay Application) [2009] FamCAFC 104 which referred to various decisions including Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 referring to Brennan J at 683:
“The jurisdiction to grant a stay in the present case depends on whether a stay is necessary to preserve the subject-matter of the litigation. If an application for special leave to appeal would be futile unless a stay is granted, the jurisdiction arises.”
That Full Court also referred to the authorities which emphasised consideration of a loss to the respondent and the need for exceptional circumstances.
Cases such as Davies & Davies [1999] FamCA 2121 (unreported) decision of Justice Chisholm and EJK & TSL (No 4) [2006] FamCA 1022 (Full Court) suggest that the child’s best interests even if not the paramount consideration when considering the stay of an order pending an appeal are a significant consideration.
All of the cases clearly recognise that granting a stay is a discretionary matter.
Brief summary of the submissions
Before me on the morning of 24 November 2009 it was conceded as an agreed fact that the child had not been at school since 27 October 2009.
The submissions on behalf of the wife in support of the stay emphasised that to deny a stay would be to render a successful appeal by the wife nugatory or make it impossible or impractical to restore the situation.
There was obviously no undue delay between the original order and the filing of the application for appeal or stay.
Ms Pyke, QC maintained for the applicant/ appellant that the grounds for the appeal had significant merit, that the applicant was bona fides in the appeal and that the interests of the child supported the granting of the stay. Ms Pyke, QC maintained that the Court was not able to draw any adverse inference in relation to the stay application based on the fact that the child was not currently attending school.
Mr Ackman, QC for the respondent husband emphasised that any hardship which might be suffered by an unsuccessful applicant for a stay should be weighed against the possible hardship that might otherwise be suffered by the respondent. (Carlin and Carlin (supra)).
The respondent maintained that the wife was not bona fides. He relied upon the background to the case. He emphasised that after the consent orders were made in March 2007 the father did spend time with the child, but since December 2007, despite a number of interim orders, the husband has only spent approximately five minutes with the child when a counsellor’s report was being prepared. He emphasised the efforts made by the husband in travelling regularly from his home in Hong Kong to Australia in an attempt to make arrangements to spend time with the child. He relied upon the reports of Dr C to support his submission that the wife was not bona fides.
In support of the submissions, Mr Ackman, QC provided the Court with copies of correspondence between the parties’ solicitors. I received the documents, notwithstanding that counsel for the wife did not consent. The letters referred to the child not attending school since the 27 October 2009 and a disputed basis for the child’s alleged distress and failure to attend school since that time. One of the documents was a medical certificate which simply stated that the child was receiving “medical treatment” for the period 9 November to 20 November 2009.
Mr Ackman, QC eventually conceded that a failure to stay the order might “literally” render the appeal nugatory, but said this was outweighed by other factors.
The Independent Children’s Lawyer’s counsel also opposed the stay application supporting His Honour Justice Strickland’s conclusion that, based on the paramountcy principle, the order was maintainable as in the child’s best interest.
The Independent Children’s Lawyer emphasised the fact that a stay would delay any time spent between the child and his father at school until the commencement of school in 2010 and emphasised the long time which had passed since the child had spent time with the husband.
The Court was made aware that next year the child would not be in Preparatory school. Significant changes to the child’s schooling arrangements in itself would be factors which may need to be taken into account when determining what would be in the child’s best interest.
Counsel for the wife maintained that the correspondence did not disclose any lack of bona fides on her part.
It was submitted that there was no specific information about the likely hearing of any appeal, but it was not anticipated that any appeal would be heard by the Full Court before March 2010.
Discussion
As previously indicated there was no undue delay between the order and the institution of the appeal and application for a stay.
The main topics in the submissions on behalf of the parties emphasised the principle that to deny a stay would render any successful appeal nugatory (the applicant appellant) and that the Court needs to consider the bona fides of the applicant for the stay (respondent husband). It is also necessary to consider the merits of the appeal and to balance the hardship that might be suffered by the appellant and respondent.
The merits of the appeal
It is necessary to make a preliminary assessment of the strength of the proposed appeal to determine whether the appellant has an arguable case (Aldridge & Keaton (Stay Appeal) (supra) – paragraph 18). The grounds for appeal allege that His Honour Justice Strickland did not give sufficient regard to the child’s special needs as an autistic child, that he failed to pay sufficient regard to the concerns expressed by the wife about the impact and risk of adverse reaction of the husband spending time with the child at school upon the child, his school attendance, the wife and the relationship between the wife and the child. It also maintained that his Honour gave undue weight to Dr C’s reports and failed to give sufficient weight to views expressed by the treating specialist and therapist associated with the child. The grounds of appeal included other more specific references to alleged errors or failure by the Judge.
When considering a stay it is not necessary to determine that the grounds will be successful, but merely that there is an arguable case or that there is some merit in the appeal.
Taking into account that his Honour’s judgment was in relation to an interim application in a difficult matter relating to the best interests of the child, the grounds of appeal may be seen as providing the basis for an arguable case.
Time of Appeal Hearing
The time in which the appeal can be heard. Although it is not clear when this appeal will be heard it is unlikely that this appeal can be listed for hearing before March 2010. If the stay were granted the arrangements for the child would be that he continue in his mother’s care, but would not be spending any time with his father. The complexities and history of this matter suggest that whilst the delay is significant and of concern, the existing arrangements for the child could not be considered to be so unsatisfactory as to require that the stay be refused.
The bona fides of the applicant
The submissions on behalf of the husband were that the history of the matter and the wife’s behaviour establish that the wife is not bona fides. The submissions on behalf of the wife maintained that the wife was bona fides in her appeal and bona fides generally. The grounds of appeal and the submissions on behalf of the wife are based upon the wife maintaining that her concern is for the welfare of the child and in particular his special needs. Notwithstanding, the complex history of this matter and the significant issues relating to the child’s best interest, there is sufficient material before the Court to establish that the wife is bona fides in bringing the application for a stay and the appeal.
Best interests of the child are a significant consideration
A stay of a parenting order presents difficulties when considering the best interest of the child. The wife maintained that the order might put at risk the structure and routine the child enjoyed at his school. The husband emphasised the benefit to the child of re-establishing his relationship with his father.
The stay of the order will temporarily maintain the status quo.
The hardship to be suffered by an unsuccessful applicant weighed against the hardship to be suffered by a respondent
If the wife did not obtain a stay then the wife would be subject to an order requiring her to permit the husband to attend at the child’s school, notwithstanding that she maintains that it is not in his best interests and may in fact be harmful. If the stay is granted the husband would be deprived of the opportunity established by the order to renew his relationship with the child. The husband would maintain that such a renewed relationship would be in the child’s best interest.
Whether the appeal would be rendered nugatory if the stay is not granted
If the stay is not granted and the order remains in force the husband will be permitted to attend at the school (subject to agreement with the Principal) on no more than two occasions each week to spend time with the child on the basis that neither the wife or the child would be advised of the husband’s proposed attendance at the school. It is therefore clear that a failure to grant the stay would render a successful appeal nugatory.
Conclusion
Having considered carefully the various factors to be brought into account I am satisfied that the wife has established that she brings the appeal promptly, on a basis that establishes an arguable case and is bona fides in the appeal. I have carefully weighed the hardship to the appellant and the hardship to the respondent, the time that will pass before the appeal can be heard and the best interests of the child.
A substantial significant factor in this matter is the conclusion I have reached that an appeal would be rendered nugatory if the stay were not granted.
For those reasons I propose to grant the stay pending the appeal.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe.
Associate:
Date: 15 December 2009
0
7
2