Swefford & Tarbell (No 2)
[2012] FamCAFC 213
•14 December 2012
FAMILY COURT OF AUSTRALIA
| SWEFFORD & TARBELL (NO. 2) | [2012] FamCAFC 213 |
| FAMILY LAW ─ APPEAL ─ PRACTICE AND PROCEDURE ─ Stay of proceedings ─ Where the mother sought leave to appeal against the refusal of the trial judge to stay the orders his Honour made on 22 October 2012 appointing the single expert ─ Whether refusing the mother’s application to stay the orders rendered the appeal against the orders of 22 October 2012 (EA 149 of 2012) nugatory ─ Where although the trial judge accepted that it was possible that Legal Aid NSW would not fund the mother’s costs for another report, his Honour failed to address the consequences for the proceedings if this came to pass ─ Where the Full Court was of the view that in coming to the determination not to grant a stay, the trial judge failed to take into account the underlying point that, if the mother’s appeal succeeded but the stay was not granted, she would be materially disadvantaged in that the single expert appointed would not be the single expert and she would not be funded to pay for any subsequently appointed expert ─ Leave granted to the mother to bring the appeal against the trial judge’s refusal to stay the orders of 22 October 2012 ─ Where the Full Court re-exercised the discretion of the trial judge and stayed the orders of 22 October 2012 pending the disposition of the appeal against those orders. |
| Family Law Act 1975 (Cth) |
| House v The King (1936) 55 CLR 499 K and B (2006) FLC 93-288 Sheldon and Weir [2011] FamCAFC 5 |
| APPELLANT: | Ms Swefford |
| RESPONDENT: | Mr Tarbell |
| INDEPENDENT CHILDREN’S LAWYER: | Christos Christaki |
| FILE NUMBER: | SYC | 889 | of | 2008 |
| APPEAL NUMBER: | EA | 153 | of | 2012 |
| ORDERS MADE: | 14 December 2012 |
| JUDGMENT DELIVERED: | 17 December 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, Ainslie-Wallace & Ryan JJ |
| HEARING DATE: | 7 December 2012 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 November 2012 |
| LOWER COURT MNC: | [2012] FamCA 989 |
REPRESENTATION
| FOR THE APPELLANT: | Ms Swefford 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 Sydney Central Family Law |
Orders as made on 14 December 2012:
Appeal against the order of Watts J made on 22 November 2012 allowed.
Set aside the order of Watts J made 22 November 2012 dismissing the mother’s application for a stay of orders made on 22 October 2012.
Order 3 made on 22 October 2012 appointing Dr R is stayed pending the disposition of the appeal against the orders of 22 October 2012.
Costs are reserved to the Full Court hearing the appeal EA 149 of 2012.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Swefford & Tarbell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 153 of 2012
File Number: SYC 889 of 2008
| Ms Swefford |
Appellant
And
| Mr Tarbell |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
On 14 December 2012, the Full Court allowed the appeal of Ms Swefford (“the mother”) against Watts J refusal of a stay of orders made by him on 22 October 2012 in parenting proceedings between the mother and Mr Tarbell (“the father”) in relation to their child D born in August 2004. Our reasons for allowing the mother’s appeal follow.
The mother appealed against his Honour’s order of 22 October 2012 appointing Dr R as the single expert. That appeal is listed for hearing by the Full Court in March 2013.
On 15 November, by application in a case, the mother sought a stay of the operation of the orders made by Watts J on 22 October. His Honour refused to stay those orders and the mother appealed that refusal which is the appeal heard by us.
The history of the matter is complex and many of the issues between the father and mother are in furious dispute. We will set out the background in as anodyne way as possible but it is necessary to consider the context from which the application and appeal arise.
The parties have been in dispute about the child for some years. In early April 2008 the mother removed the child from Australia without the father’s knowledge or consent. In May 2008 an order was made in this court, ex parte the mother, that the child live with the father. The child remained out of Australia, his whereabouts unknown to the father, until he was returned to Australia and the care of his father on 25 January 2011.
The child has remained living with his father and spends time with the mother under supervision.
There are parenting proceedings on foot between the mother and father about the child.
Procedural history
It is necessary to consider the procedural history of the matter to the extent that it concerns the appointment of a single expert. We have necessarily had regard to the orders and reasons for decision of Watts J made on 22 October for it is from those orders that the mother’s application for a stay arose.
In November 2011 Loughnan J ordered that Associate Professor Q be appointed to prepare an expert report in the matter. A consequential order made by Loughnan J required a report earlier prepared by Dr W be given to Dr Q for her consideration.
The mother appealed against that consequential order.
In February 2012 the father sought an order revoking the appointment of Dr Q. That application was dismissed and the father appealed the dismissal. The operation of the order appointing Dr Q was stayed pending determination of the appeal.
In June 2012 the Full Court dismissed both appeals.
Because of the appeal, the appointments with Dr Q for interviews of the parties in preparation of her report were cancelled. Further, tentative appointment dates and times were given by Dr Q.
Before any of the appointments took place, on 21 September, Dr Q wrote to the Court advising that she wished to withdraw her consent to act as the single expert in the matter. According to the reasons for decision of Watts J delivered on 22 October, Dr Q’s letter cited cancelled appointments and difficulties in the payment of her professional fees at [6].
On 22 October Watts J discharged his orders appointing Dr Q as the single expert.
He then turned his attention to who to appoint in her stead.
Dr R was suggested as a suitable person to be appointed at [9].
His Honour recorded that the mother opposed that appointment arguing that Dr R did not possess the appropriate professional qualifications necessary for this matter. Further, his Honour recorded the mother’s submission being that Ms V a social worker be appointed as well as Dr Q and that they work together to prepare the report. His Honour rejected this submission at [10].
His Honour then said:
14.Dr [R’s] qualifications are set out in exhibit 17. She is a psychiatrist with experience in child and family psychiatry. She has provided single expert evidence to this Court since 1987. The mother alleges in this case that the father suffers from a number of diagnosable psychiatric conditions. Similar allegations are made against the mother. Dr [R] is qualified to give me an opinion about those issues. There is also an issue as to whether or not there is an unacceptable risk that the father sexually abused [the child]. The determination of that issue will probably, in good part, turn upon factual findings I am asked to make.
His Honour concluded that Dr R was qualified to give any expert opinion about that issue and he proceeded to appoint Dr R as the single expert.
As we have indicated, on 22 November 2012 Watts J heard and refused the mother’s application that he stay his orders of 22 October 2012.
Reasons for decision of 22 November 2012
His Honour observed that he had been informed that the earliest hearing date by the Full Court of the mother’s appeal against the order of 22 October was March 2013. He further observed that in 2008 lawyers then acting for the mother suggested that Dr R be appointed to act as Single Expert in the matter at [3].
He further noted at [5] that as part of the mother’s stay application, she sought the re-appointment of Dr Q as Single Expert.
His Honour recorded that the father and the Independent Children’s Lawyer (“ICL”) opposed the granting of a stay.
He correctly indicated at [9] that the granting of a stay is a discretionary matter and in this case, the best interests of the child is an important consideration (see K and B (2006) FLC 93-288; Sheldon and Weir [2011] FamCAFC 5).
The trial judge then set out the matters to be considered by him in deciding whether to grant a stay at [10]:
10.1Does the mother have substantial grounds for appeal;
10.2When is an appeal likely to be heard;
10.3Is there any hardship for either parent as compared to the other in either granting or not granting the stay;
10.4Does the lack of a stay render the mother’s appeal nugatory; and,
10.5What result is most in the child’s best interests.
His Honour considered the mother’s grounds of appeal against his order of 22 October in determining the first question posed in [10]. It is not necessary for us to here set out his Honour’s discussion of those grounds but we note that his Honour concluded at [41] that the mother’s Notice of Appeal did not demonstrate any substantial ground of appeal.
As we have already noted, his Honour observed that the hearing in the Full Court of the mother’s appeal was not likely to be heard before March 2013. He said:
42.… If the stay is granted, interviews for any report will be delayed until after the time the Full Court finalises the appeal. The litigation process has already contributed to significant delays in the preparation of a report for the hearing. ...
Turning to whether any hardship would accrue to either party, his Honour found no real hardship to either party flowing from a grant or refusal to grant a stay at [43].
Whether the failure to grant a stay would render the mother’s appeal nugatory, his Honour said:
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 A/Prof [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. (Errors as in original)
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.
The appeal
The mother seeks leave to appeal and, if the leave be granted raises eight grounds of appeal in challenge to his Honour’s decision. We will consider the issue of leave to appeal as part of our consideration of the appeal generally because issues going to the success or otherwise of the appeal will be pertinent to the issue of whether to grant leave to appeal.
Without offering any disrespect to the mother’s detailed grounds of appeal or her summary of argument, it is not necessary for us to engage with them other than as to Grounds 6 and 7 which provided:
6.In refusing my application to stay the orders, my appeal was rendered nugatory in that both the father and I would be forced to pay Dr [R] for a report and then in the event that my appeal were successful, neither the father nor I could pay for a second report from a different expert witness. His Honour breached principles of procedural fairness and specifically denied me the right of correctability through the right to appeal.
7.In refusing my application to stay the orders, my appeal was rendered nugatory in that the interviews with the Expert I am appealing against will have taken place in December 2012 and the Expert will have completed a report prior to my appeal hearing which would be in March 2013 at the earliest.
In her written submissions on these grounds, the mother argued that while she is indeed in receipt of a grant of legal aid in the matter, his Honour was told by counsel for the ICL that if Dr R conducted interviews and prepared a report pursuant to an order that was subsequently set aside, Legal Aid NSW would not fund her for a further report.
Before his Honour initially both the ICL and the father supported the mother’s application that a stay be granted. The rationale for which is apparent from the following exchange which took place between counsel for the ICL and his Honour:
MR BERRY: … The only reason that we’re taking a perhaps practical approach is that – and this is a practical situation – if the situation were to be that your Honour didn’t grant the stay, that Dr [R] did her interviews in December and the appeal comes on in March and the appeal is successful then quite frankly legal aid has run out of money and there simply will be no money left for any expert. So that’s why we’re taking the practical approach of perhaps consenting to the stay to await the outcome of the appeal.
After further consideration of the effect of delaying the substantive proceedings, his Honour said:
HIS HONOUR: All right. Mr Berry, what do you want to tell me about the stay application? You’re not opposing it and the reason why you’re not opposing it is that if the appeal was successful, no matter what the strengths of the appeal might be as currently framed, you believe that there won’t be any money left if ---
MR BERRY: That’s if the interviews take place in December and if the stay is granted those interviews won’t take place. We will still have Dr [R] and we won’t have incurred further expense. Bearing in mind that the mother is legally aided for the substantive matter so legal aid are, in fact, paying her half of those fees and the other half has been paid by the father. But the legal aid – we have an okay for legal aid to actually pay that money out and then recover it from the father some time down the track.
However, after hearing submissions on behalf of the father, counsel for the ICL made further submissions to his Honour on the effect on the appeal if the stay was not granted. He said:
MR BERRY: … And in relation to the stay causing the appeal to be nugatory ---
HIS HONOUR: The lack of a stay.
MR BERRY: That lack of a stay, I’m sorry. But that, in my respectful submission, doesn’t affect the result of the appeal. What it does mean is that the matter can progress if the appeal is granted. Certainly, there’s a lot lost, but if the appeal is not granted or is not successful, then the matter has progressed. We’ve got a report. We’re ready to commence a hearing, and bearing in mind that, had it not been for these interlocutory matters, your Honour would be sitting there right now, hearing the matter, it having been originally listed to start Monday of this week for two weeks. All that has gone, and I think that leads into [the child’s] best interests. In my respectful submission, for this matter to be heard as soon as possible is definitely in [the child’s] best interests. ...
In his written submissions on the appeal, counsel for the ICL maintained the position asserted to his Honour about the unavailability of legal aid to pay for another report in the event that the mother’s appeal succeeds but in the intervening period Dr R has conducted interviews and prepared a report that cannot in the result be used.
The written submissions for the father on appeal repeated the submissions made to his Honour on whether the lack of a stay rendered the appeal nugatory:
MR HOLMES: Well, we say it plainly doesn’t because if Dr [R] is dismissed because of the grounds set out in the mother’s appeal, Dr [R’s] report will be of no weight whatsoever and will be completely ineffective in this case and, more to the point, there will need to be another report, so the mother’s appeal will not be rendered nugatory if a stay is not granted. The overarching factor in your Honour’s decision is the fifth factor, [the child’s] best interests, and when one sits back and looks at this litigation, it is readily apparently that [the child] needs to get out of this system and to get on with his life and we say there is a doctor willing to do the report, who has been ordered to do the report and no harm – in fact, it’s positively in [the child’s] interests that those interviews go ahead.
With respect to those submissions, they do not engage with the point by which the mother argues the appeal will be rendered nugatory. The point is not that another doctor could not be engaged to prepare the report if the appeal against the order appointing Dr R was successful. The point is that, if the interviews go ahead and a report prepared by Dr R, the mother’s successful appeal which would have that order set aside would bear no fruit because, as Mr Berry told his Honour, Legal Aid NSW will not fund the further report.
We find force in the mother’s argument on this point. As is clear from paragraph 46 of his Honours reasons, his Honour did not address this issue. Although he accepted that it was possible that Legal Aid NSW would not fund the mother’s costs for another report he failed to address the consequences for the proceedings if this came to pass. Rather his Honour said should legal aid funding be exhausted further “consideration by the court as to how the cost of that report will be paid” may be required. No evidence was presented to his Honour or us to the effect that absent legal aid funding for a single expert’s report there were other funding possibilities.
His Honour’s determination to refuse a stay is an exercise of discretion and we are conscious of the circumscribed ambit for appellate intervention as set out in this well know passage from House v The King (1936) 55 CLR 499 where Dixon, Evatt and McTiernan JJ at 504-05 held:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
We are of the view that in coming to the determination not to grant a stay, his Honour failed to take into account the underlying point that, if the mother’s appeal succeeded but the stay was not granted, she would be materially disadvantaged in that Dr R would not be the single expert but she would be not be funded to pay for any subsequently appointed expert.
This ground of appeal has been made out.
It is not therefore necessary for us to consider the other grounds of appeal challenging his Honour’s refusal to grant a stay. However, it is appropriate to observe that in relation to the various grounds of appeal which allege prejudgment or apprehension of bias, there is nothing in the mother’s summary of argument or submissions that justified appellate intervention.
Leave to Appeal
It follows that we are prepared to grant the mother leave to bring the appeal against his Honour’s refusal to order the stay of his orders.
Disposition of the appeal
We will consistently with our conclusions uphold the appeal. The mother’s notice of appeal sought orders that, in the event that the appeal is upheld, this court, in effect, re-exercise his Honour’s discretion and order a stay of the orders made on 22 October 2012.
In all of the circumstances, we propose to make that order as a matter of expediency given the impending scheduled interviews with Dr R.
Costs of the appeal
The question of costs to the appeal is reserved to the Full Court hearing the appeal EA 149 of 2012.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, Ainslie-Wallace and Ryan JJ) delivered on 17 December 2012.
Associate:
Date: 17.12.2012
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