Sullivan & Tyler (No 3)

[2013] FamCA 472

FAMILY COURT OF AUSTRALIA

SULLIVAN & TYLER (NO. 3) [2013] FamCA 472

FAMILY LAW ─ Application for stay of orders regarding the appointment of Chapter 15 expert ─ Where the overwhelming consideration is the possible effect on the child’s situation by granting the stay and cancelling another set of scheduled interviews with the Chapter 15 expert ─Where if the parents and child are unable to have interviews with the Chapter 15 expert, the case may move to a final hearing without any guarantee of the assistance of a report from a Chapter 15 expert ─ Mother’s application for a stay is refused

Family Law Act 1975 (Cth)

K & B (2006) FLC 93-288

Sheldon & Weir (Stay Application) [2011] FamCAFC 5

APPLICANT: Ms Sullivan

RESPONDENT: Mr Tyler

INDEPENDENT CHILDREN’S LAWYER: Christos Christaki

FILE NUMBER: SYC 889 of 2008

DATE DELIVERED: 19 June 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 6 June 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE RESPONDENT: KDB Holmes Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Berry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. The mother’s Application in a Case filed 23 May 2013 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sullivan & Tyler 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 SYDNEY

FILE NUMBER: SYC 889 of 2008

Ms Sullivan

Applicant

And

Mr Tyler

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. On 23 May 2013 I granted the mother leave to file an application for a stay of orders 3, 4 and 5 made on 22 October 2012.

2. Those orders provided that Dr R be appointed as a single expert to give the court a report pursuant to Chapter 15 Family Law Rules together with consequential orders relating to the payment of Dr R’s costs and an order that the parties facilitate the preparation of the report including attending upon and arranging for the child to attend upon Dr R.

3. The father neither consents to nor opposes the mother’s application for a stay of these orders. The Independent Children’s Lawyer supports the mother’s application for a stay of these orders.

4. I indicated during submissions that in addition to the positions put by the parties and the Independent Children’s Lawyer, the other option I would contemplate is dismissing the mother’s application.

SHORT CHRONOLOGY

1. After orders 3, 4 and 5 were made on 22 October 2012, appointments were made for the parents and the child to attend interviews with Dr R on 18 December 2012.

2. On 8 November 2012 the mother filed, inter alia, an appeal against the orders which required the parents and the child to be interviewed by Dr R and on 15 November 2012 the mother filed an application seeking a stay of the orders.

3. On 22 November 2012 I dismissed the mother’s application to grant a stay, leaving in place the scheduled interviews on 18 December 2012.

4. The mother appealed the order refusing the stay and was successful. The Full Court on 14 December 2012 made an order granting the mother a stay (providing reasons on 17 December 2012). The interviews scheduled on 18 December 2012 for Dr R to interview the parties and the child were cancelled.

5. The Full Court heard the mother’s appeal against the order appointing Dr R as a single expert on 20 March 2013; and delivered reasons on 25 March 2013 dismissing the appeal.

6. New appointments were scheduled for Dr R to carry out interviews at what I have been told is her earliest available time, being 10 and 11 September 2013.

7. The mother says in her affidavit in support of this application, that “On 17 April 2013 I applied for leave to the High Court of Australia against the 25 March 2013 orders dismissing my appeal to the Full Court”. The mother has not provided the court with any documentation that she has lodged with the High Court.

8. Firstly, it appears, on its face, that the application filed with the High Court by the mother cannot succeed given s 95 of the Family Law Act 1975 (Cth) (“the Act”) is in the following terms:

   Despite anything contained in any other Act, an appeal does not lie to the High Court from a decree of a court exercising jurisdiction under this Act, whether original or appellate, except by special leave of the High Court. [emphasis added]

9. I have no evidence as to when it might be that the High Court might consider the mother’s application “for leave”.

10. Secondly, the likely practical effect of granting a stay will be the cancellation of the September 2013 interviews with Dr R. The mother has not led evidence about how long her application to the High Court is likely to take. It may well be that the High Court will deliver the result of the mother’s application in a time frame that would allow the interviews to continue to take place. It is not appropriate to grant a stay given the uncertain time in which the mother’s application will be determined.

11. But these are not the only bases upon which the mother’s application fails.

12. I explained in my reasons delivered on 22 November 2012 why, in my view, the mother’s appeal against orders appointing Dr R were without merit. Subsequently the mother was wholly unsuccessful in convincing the Full Court, in March 2013, that there was any merit in her appeal, for reasons explained by the Full Court.

13. Successful special leave applications to the High Court are the exception not the rule and are even rarer where what is being challenged is an interlocutory order.

14. It seems to be a fact agreed by the parties that it is unlikely that Legal Aid NSW would pay for the costs of a report by any other expert who was subsequently appointed, after Legal Aid had funded the mother’s half costs of Dr R’s report and that report was not able to be used because the mother’s application to the High Court was successful.

15. The mother relies fundamentally upon the same basis as she did when she was successful before the Full Court in the proceedings which led to the Full Court making orders on 14 December 2012.

16. It is consequently instructive to revisit my reasons of 22 November 2012 (when I refused the mother’s stay of orders relating to the preparation by Dr R of the expert report) and the Full Court’s reasons for overturning that decision.

17. In summary, I concluded that the mother did not have a substantial ground of appeal (that conclusion was affirmed by the Full Court in their decision of 25 March 2013); that the appeal was not likely to be heard before March 2013 (which prediction turned out to be accurate). I found that there was no hardship one way or the other in relation to either parent as compared to the other in granting or not granting the stay.

18. I considered whether or not the lack of a stay rendered the mother’s appeal nugatory and said:

    44.    The fourth consideration is whether or not not granting the stay renders the mother’s appeal (if successful) nugatory.  In the event that the stay is not granted, my orders will have effect, and the parties will be under an obligation pursuant to court order to attend for interviews with Dr [R] which are scheduled for December 2012 (although the mother did intimate she will consider whether or not she will comply with my order).  Dr [R] will have read material and may well have prepared a report by March 2013.

    45.    However, in the event that I am wrong about the substance of the mother’s grounds for appeal and the Full Court overturn the order that I have made that Dr [R] be appointed as a single expert, the effect would be, as Mr Holmes has indicated, that Dr [R] would not be able to give evidence (nor her report used) because the order allowing her to report to the court will have been discharged. A different report writer would have to be found.

    46.    The mother has said that if the stay is not granted, but her appeal is successful, the parties would have to pay Dr [R], and a new Chapter 15 expert. The mother raised the fact that father may not have money for any new Chapter 15 expert (on top of what he is already paying towards Dr [R’s] fees), in circumstances where the father said that he could not pay for additional work that [Dr Q] might have to do. In the original hearing on 22 October 2012, the mother said the father was on a “$100,000 a year pension for life”. The father said he was willing to take that risk that he would need to pay a further amount of money should the mother’s appeal be successful, and that he would find that money. I accept that in the event the father has to find additional monies in about five months time to pay for his share of the costs of a new report, he would be able to do so. The mother’s share of the cost of Dr [R’s] report has been covered by Legal Aid NSW and she does not assert that Legal Aid would not continue to cover her reasonable costs. If the appeal is successful and a new report writer needs to be appointed and Legal Aid NSW do not cover the mother’s half share of that new report, there may have to be further consideration by the court as to how the cost of that report will be paid.

19. I considered what result is most in the child’s best interests and said:

    47.    The overwhelming consideration, from my point of view, is what is in [the child’s] interests. It is in [the child’s] interests to have a final hearing in this case as soon as that is possible. The order for a stay would impact on [the child’s] future welfare in that the scheduled dates for interviews would be lost and the preparation of the Chapter 15 report would be delayed, and in those circumstances, it is unlikely there would be a final hearing absent the report about the matters about which Dr [R] has been asked to consider.

20. On appeal the Full Court confirmed that the granting of a stay is a discretionary matter and that in this case, the best interests of the child is an important consideration (see K & B (2006) FLC 93-288; Sheldon & Weir (Stay Application) [2011] FamCAFC 5).

21. The Full Court at paragraph 31 said the following:

    31. His Honour considered that “the overwhelming” consideration was the child’s best interests and determined that it is in [the child’s] interests to have a final hearing as soon as that is possible. His Honour was clearly concerned further delay in a final hearing would adversely impact on his future welfare at [47]. In fairness to his Honour, he understood March 2013 was the earliest date upon which the mother’s appeal might be listed. As we have already said, the appeal is now listed for hearing in March 2013..

22. What I was primarily concerned about when dealing with the first stay application was the loss of the December 2012 interviews with Dr R. As it turned out, appointments for new interviews have only been able to be remade nine months after the ones which were lost.

23. The Full Court said that they found force in the mother’s argument that:

    40.    …the point is that, if the interviews go ahead and a report prepared [sic] by Dr [R], the mother’s successful appeal which would have that order set aside would bear no fruit because, as [counsel for the Independent Children’s Lawyer] told his Honour, Legal Aid NSW will not fund a further report.

24. The Full Court concluded that I had not addressed that issue in paragraph 46 and that I had failed to address the consequence for the proceedings if Dr R’s report was unable to be used and if Legal Aid NSW was not prepared to further fund any other report. They referred to what I did say which was, should Legal Aid funding be exhausted “consideration by the court as to how the cost of the report will be paid” may be required. They commented however that there was no evidence presented as to the effect of absent Legal Aid funding for a single expert report, that there were other funding possibilities.

25. Once again, in this application, the overwhelming consideration is the possible effect on the child’s situation by granting the stay and cancelling another set of scheduled interviews.

26. One experienced Chapter 15 expert has already indicated that she did not wish to continue to participate in these proceedings because of, inter alia, cancelled interviews. I am very uneasy about making an order which in effect would cancel a second set of interviews with Dr R. Given the previous history, I am concerned not only about further delay but that a cancellation of a second lot of interviews may culminate in Dr R taking the same position as A/Prof Q thereby delivering the result the mother seeks, regardless of her application to the High Court.

27. As time goes on, and the ability to manage this case is bogged in the mire of multiple appeals by the mother against interlocutory orders at multiple levels, the child’s best interests are left behind. I am mindful of the need for the court to give effect to the principles set out in s 69ZN of the Act and particularly ss 3, 4, 5 and 7. As I said during submissions on this application, if the parents and child are unable to have interviews with Dr R, the time may have come in this case to consider moving to a final hearing without any guarantee of the assistance of a report from a Chapter 15 expert. This would not be the first case where a Chapter 15 expert report was not able to be obtained because of funding issues. If another stay is granted, it is becoming more likely that a final hearing might take place without a Chapter 15 expert report. Whether, in those circumstances, a report from a family consultant is obtained on limited issues may still need to be considered.

28. The mother’s position is that a single expert report is required in this case but only if it is done by an expert who, in the mother’s eyes, has a certain type of expertise.

29. The point has been reached in this case that, it is no longer certain that any Chapter 15 report will be obtained for the final trial. In those circumstances, a cancellation of the appointments for Dr R does not, ipso facto, render the mother’s application to the High Court nugatory. In fact, cancellation of the appointments may well render the father’s and Independent Children's Lawyer’s opposition to the mother’s application nugatory.

30. Counsel for the Independent Children’s Lawyer concedes the mother’s application for a stay on the basis that the Full Court will find the mother’s argument as forceful as it was on the last occasion, but the Full Court may not.

31. The fact is that during the nine months that will have passed between the two sets of scheduled interviews, the child will continue to live with his father and spend limited time with his mother. The mother asserts that that situation is dire for the child and not at all in the child’s best interests. There have been two interim parenting hearings since the child was returned from overseas and an order has been made which requires the mother to seek leave to bring any other interim parenting application. The paradox in this case is the mother asserts that the child is living in an intolerable situation but at the same time is conducting this litigation in a way that mitigates against this court being able to list the matter for a final hearing, having vacated the 10 days which were set for the final hearing in 2012. What orders are in the child’s best interests will best be determined at a final hearing when all matters can be properly ventilated and tested. Yes, the court would hope to be assisted by a Chapter 15 expert in this matter, but there comes a point where it is more important for the child to finally hear the case on the evidence that is available. For so ever long as the mother delays the final hearing whilst continuing to attempt to bring interlocutory applications, the situation for the child remains unresolved.

32. For all these reasons stated, particularly the child’s best interests and the nature of the mother’s application to the High Court, the mother’s application for a stay is refused. Unless an appellate court grants a stay, the interviews are to take place.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 19 June 2013.

Associate: 

Date:  19.6.2013