JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : T -v- S [No 2] [2015] WASCA 235 CORAM : MURPHY JA HEARD : 19 NOVEMBER 2015 DELIVERED : 19 NOVEMBER 2015 FILE NO/S : CACV 103 of 2015 BETWEEN : T ON APPEAL FROM: Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA Coram : DUNCANSON J
Citation : [2015] FCWA 50
File No : PTW 4345 of 2014
Catchwords:
Practice and procedure - Stay pending application for special leave to appeal to the High Court - Where parenting orders made by Family Court of Western Australia affirmed by Court of Appeal - Where orders authorise child's removal from Australia
Legislation:
Nil
Result:
Stay application dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr C A Fogliani
Solicitors:
Appellant : In person
Respondent : W G McNally Jones Staff Lawyers
Case(s) referred to in judgment(s):Cape & Cape [2013] FamCAFC 114De L v Director-General, NSW Department of Community Services (1996) 136 ALR 201Federal Commissioner of Taxation v The Myer Emporium Ltd (No 1) (1986) 160 CLR 220Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681JRN v IEG (1998) 72 ALJR 1329Minister for Immigration v B (Infants) (No 2) [2003] FamCA 591; (2003) 175 FLR 426Paringa Mining & Exploration Co Plc v North Flinders Mines Ltd (1988) 165 CLR 452Rinehart v Welker [2012] NSWCA 1; (2012) 83 NSWLR 347T v S [2015] WASCA 225Williamson v The Bendigo Adelaide Bank Ltd (No 2) [2012] WASCA 269Windsor & Kava [2015] FamCA 6681 REASONS OF THE COURT: On 16 November 2015, this court dismissed the appellant's appeal against parenting orders made by Duncanson J in the Family Court of Western Australia. Those parenting orders provided for the respondent to have parental responsibility in respect of the parties' child, J, and for J to live with the respondent in Indonesia. The Family Court's orders providing for J to live with his mother in Indonesia were stayed until the determination of the appeal to this court. 2 The court's reasons for dismissing that appeal have been published as T v S[2015] WASCA 225. When the appeal to this court was dismissed, the stay of the Family Court's orders ceased to have effect.
3 The parties agreed as to the consequential orders which ought to be made following dismissal of the appeal. These included an order varying the order for return of J to the respondent so that:
The appellant … shall return the child, [J], to the respondent … by 5.00 pm on Friday 20 November 2015, or as otherwise agreed in writing between the parties. The respondent shall then be at liberty to remove the child from the Commonwealth of Australia.
4 On 18 November 2015, the appellant filed an application for special leave to appeal to the High Court of Australia against the orders of this court. 5 Also on 18 November 2015, the appellant applied for a stay of the orders made by this court on 16 November 2015.
6 Strictly, a mere stay of the orders of this court would not assist the appellant. He would also require a further stay of the parenting orders made by the Family Court. We will treat the application as implicitly seeking such a stay.
7 The orders of this court provide for J to be returned to the respondent by 5.00 pm tomorrow, following which the respondent is at liberty to remove J from Australia. The court listed the stay application for an urgent hearing today.
8 The appellant informed the court that the order he sought is for a stay pending the determination by the High Court of the special leave application and pending the determination of the appeal in the High Court, if special leave were granted.
General principles
9 It is established that this court has jurisdiction to grant a stay pending the determination of an application for special leave and any subsequent appeal to the High Court. A stay application is appropriately made to this court, rather than the High Court, in the first instance. In exercising the jurisdiction to grant a stay, the court applies the same principles as are applied in the High Court on such an application.1
10 Those principles were summarised by Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd.2
A stay to preserve the subject-matter of litigation pending an application for special leave to appeal is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted … In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court's discretion. In each case when the Court is satisfied a stay is required to preserve the subject-matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.
11 Obviously, the second consideration is not presently relevant, but the other matters require our attention. 12 In a case involving the custody and care of a child, it is also appropriate for the court also to have regard to the best interests of the child in the exercise of its discretion to grant a stay.3 While courts may be reluctant to stay an order permitting a child to leave Australia pending the determination of an appeal against that order,4 it remains for this court to consider all relevant matters in a principled fashion5 to determine where the interests of justice lie. In considering the grant or refusal of a stay, the court appropriately has regard to the best interests of the child, and any harm to the child which may follow from the grant or refusal, in assessing the balance of convenience.
Whether the special leave application may be rendered nugatory if a stay is not granted
13 We will assume, in the appellant's favour, that a stay is required to preserve the subject matter of the proposed further appeal, in the sense that there is a real risk that it will not be possible for the appellant to be restored substantially to his former position if the parenting orders are implemented and an appeal to the High Court is subsequently allowed.6 Such a risk would arise if J is removed to Indonesia, the respondent does not comply with the High Court's orders and it is not possible to enforce those orders in Indonesia.
Prospects of grant of special leave to appeal
14 On that assumption, we turn to consider whether there is any substantial prospect that special leave will be granted on any of the grounds which the appellant proposes to advance to the High Court.
Ground 1: conclusion about Indonesian law
15 The first ground of the special leave application is:
The learned Court of Appeal Judges erred in fact and in law in concluding that the evidence does not address the question of whether Indonesian law provides a means of ensuring contact between the child and the appellant.
16 This ground attacks the conclusion reached at [64] - [65] of the court's previous decision. 17 That conclusion addressed the appellant's submission that the trial judge failed to take account of the fact that, on return to Indonesia, J would be denied 'any enforceable right to a meaningful relationship' with the appellant. However, there were two primary answers to that submission. First, the relevant ground of appeal to this court amounted to no more than an alleged weighting error, which did not establish any miscarriage of the trial judge's discretion [61]. Secondly, the trial judge did take account of the fact that orders she made would be unenforceable in Indonesia [63]. Neither of those two findings are challenged in the special leave application. Therefore, even if the first special leave ground were established, the error would not have affected the ultimate disposition of the appeal in this court.
18 In any event, the conclusion which the ground seeks to impugn turned on an assessment of the content of Professor Lindsey's report, a matter which seems an unlikely subject for the grant of special leave to appeal.
Ground 2: failure to consider evidence as a material error
19 The second ground of the appellant's special leave application is:
The learned Court of Appeal Judges erred in finding that the trial judge's failure to consider evidence of family violence did not constitute a material error.
20 This ground challenges the conclusion reached at [88] - [95] of the court's previous decision. That conclusion turned on an assessment of the significance of the evidence in light of the benefits of J living with the respondent, which the trial judge had identified. The ground does not appear to raise any point of principle which is likely to be the subject of a grant of special leave to appeal. Rather, the impugned conclusion turns on an assessment of the significance of particular evidence in the context of other evidence before, and findings made by, the trial judge.Ground 3: discrimination against the appellant under Indonesian law
21 The final ground on which special leave to appeal is sought is expressed in the following terms:
The learned Court of Appeal Judges erred in law in concluding that it is not relevant that the appellant would be discriminated against under Indonesian law in regard to the appellant's ability to enforce the rights of the child.
22 This ground appears to relate to the manner in which this court dealt with the argument summarised at [73] of the previous decision. The ground does not accurately reflect the conclusion reached by this court at [74] - [85] of the reasons. The ground, and draft submissions provided to us, seek to re-agitate an argument which the appellant, by his senior counsel, accepted did not take the matter any further.7 The ultimate question for the trial judge's determination was properly accepted to be what was in J's best interests, rather than whether the appellant would be subject to discrimination.Conclusion as to prospects of success
23 For these reasons, we are not satisfied that any of the grounds now advanced by the appellant have any substantial prospect of attracting a grant of special leave to appeal. That is a factor which counts against a stay pending the determination of the special leave application.
24 In reaching this conclusion, we are conscious of the limitations inherent in a judge assessing the correctness of his or her own decision.8 However, in a case such as the present, it is incumbent upon this court to consider and determine the stay application on its merits on a principled basis.9 In the present case, our conclusion about the prospects of the appellant obtaining special leave does not depend on our own view of the correctness of our previous decision. Rather, the principal difficulties for the appellant which we have identified concern whether the grounds raise a matter of principle likely to obtain a grant of special leave and, in the case of grounds 1 and 3, whether the error alleged would have affected the outcome of the appeal.
Balance of convenience
25 The appellant contended that the balance of convenience favours him:10
'in the sense that if the stay is granted it will have the effect of extending for a further period of time the current status quo which has been in existence since 1 July 2014 and has seen the child living with the appellant father and the child's paternal grandparents in Perth and not with the respondent mother'.
We are unable to accept that submission.
26 It is significant that it is now over 16 months since J was sent for a 12 day visit to Australia on 1 July 2014, and the appellant made the unilateral decision to retain him in Australia. That is a considerable period for a child, now 7 years old and at an important stage of his development, to be away from his mother who was his primary carer and person with whom he formed his primary attachment. The considered view of the trial judge was that it was in J's best interests to return to the care of his mother in Indonesia. The appellant did not establish that the trial judge made any material error in reaching that conclusion. In this context, to further delay that return would, on the material before us, be contrary to J's interests. 27 Further, whilst this court had previously ordered a stay pending the determination of the appeal, the appellant has now had a determination of the appeal on its merits and, as noted above, we are not persuaded that the special leave grounds have any substantial prospect of success.
28 It is also relevant to note that the trial judge made unchallenged findings of fact that the respondent has never refused a request for the appellant to spend time with J in Indonesia or in Perth, and that the respondent has good reason to remain in contact with the appellant and comply with the court's orders. It is also relevant to note that the existing parenting orders provide for J to return to Australia to visit the appellant for three weeks in the December/January school holidays.
29 In the stay application the appellant deposed that:
After being settled in Perth for some fifteen months to date, my son, [J], is distressed at being compelled to leave Australia at four days['] notice. In particular, he is distressed at not having enough time to say goodbye to all of his close friends.
We note that the time at which J would be returned to his mother following the dismissal of the appeal to this court was agreed by both parties at a time when each was legally represented. Further, the matter raised in this paragraph of the appellant's affidavit would not justify staying the orders until the determination of the special leave application and any subsequent appeal to the High Court.
30 Finally, if a stay is granted then the respondent will suffer a continued loss of contact with J while an application for special leave and any subsequent appeal are resolved. Whilst that factor might be taken into account in considering whether a stay should be granted, in the present case the principal focus is appropriately on J's best interests, rather than any prejudice which the respondent, or the appellant, may suffer if a stay is or is not granted.Conclusion and orders
31 Having regard to all of the above matters, we are not satisfied that it is in the interests of justice to grant a stay pending determination of the application for special leave to appeal. While there is a risk that the appellant may not be returned to his current position if a stay is not granted and an appeal to the High Court is successful, it is no more than a risk and, on the unchallenged findings of the primary court, there are reasons to think the risk may not eventuate. The appellant's grounds for seeking special leave to appeal do not appear to us to have merit. As noted earlier, it would appear in the circumstances of this case that the grant of a stay would be contrary to J's best interests. Balancing all of these considerations, our view is that the application for a stay should be dismissed.
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1Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79; see also Williamson v The Bendigo Adelaide Bank Ltd (No 2) [2012] WASCA 269.2Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681, 684 - 685. This approach has been adopted by both the High Court and other Australian appellate courts: see the review of authority by the NSW Court of Appeal in Rinehart v Welker [2012] NSWCA 1; (2012) 83 NSWLR 347.3Minister for Immigration v B (Infants) (No 2) [2003] FamCA 591; (2003) 175 FLR 426, [28] - [29], citing JRN v IEG (1998) 72 ALJR 1329 [16]; Windsor & Kava [2015] FamCA 668 [26] - [34] and cases there cited.4Cape & Cape [2013] FamCAFC 114 [61].5De L v Director-General, NSW Department of Community Services (1996) 136 ALR 201, 203.6Federal Commissioner of Taxation v The Myer Emporium Ltd (No 1) (1986) 160 CLR 220, 222 - 223; Hamersley Iron (82, 89).7 As we noted at [84] - [85].8Paringa Mining & Exploration Co Plc v North Flinders Mines Ltd (1988) 165 CLR 452, 459.9Jennings Construction (684); De L (203).10 Appellant's written submissions, par 5.