TAB and RGP
[2005] FamCA 804
•27 June 2005
[2005] FamCA 804
FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUSTRALIA
VIA VIDEO LINK WITH CAIRNS AND NEWCASTLE
Appeal No. EA 44 of 2005
File No. NCM 889 of 2004
IN THE MATTER OF:
TAB
Appellant/Mother
- and -
RGP
Respondent/Father
REASONS FOR JUDGMENT
EX TEMPORE
| CORAM: | Coleman J |
| DATE OF HEARING: | 24th day of June 2005 |
| DATE OF JUDGMENT: | 27th day of June 2005 |
APPEARANCES:
| Mr Maiden of Counsel | On behalf of the Applicant Mother (address for service: Kim Monnox & Associates, Solicitors) |
| Mr Wiggins, Solicitor | On behalf of the Respondent Father (address for service: Brett Wiggins & Associates, Solicitors) |
| Ms O’Rourke, Solicitor | On behalf of the Child's Representative (address for service: Legal Aid Newcastle, Solicitors) |
Name of Appeal TAB & RGP
Appeal Number EA 44 of 2005
Date of Appeal Hearing 24th day of June 2005
Date of Judgment 27th day of June 2005
Bench Coleman J
Catchwords:Appeal against refusal by Federal Magistrate to stay orders for residence of child.
Held that Federal Magistrate erred in refusing stay of orders changing long established status quo pending hearing of appeal against such orders in the absence of reasons for such change.
Held that notwithstanding such error, further evidence adduced by consent pursuant to s 93A(2) established that granting of stay pending hearing of substantive appeal was not in child's interests.
Decision of the High Court in CDJ v VAJ (1998) 197 CLR 172 and of Full Court of Family Court in CSN v JBN (1998) FLC 92-833 discussed.
Appeal dismissed.
Costs reserved to Full Court hearing substantive appeal.
This is an appeal against the refusal of a learned Federal Magistrate on 22 March this year to stay the operation of orders for residence and contact made by him earlier that day. Whilst the formal Notice of Appeal against the substantive orders made on that date and the Notice of Appeal in relation to the stay were both filed on 18 April 2005, it is clear that the application for a stay was made to the learned Federal Magistrate at the time necessarily immediately following the making of the orders appealed against in the Notice of Appeal filed 18 April 2005.
The proceedings before the learned Federal Magistrate related to residence of and contact with a female child who was born 14 July 1996. It is common ground that the child had, for at least the previous four years, resided with the appellant who is the mother of the child, and had experienced but limited contact with the respondent who is the child's natural father.
The effect of the orders made by the learned Federal Magistrate on 22 March was accordingly to change the long standing status quo in relation to residence of the child and to prescribe contact thereafter in the terms appearing in orders 3 and following of the orders made by the learned Federal Magistrate.
As is apparent, the learned Federal Magistrate adopted the somewhat unusual and, with respect, regrettable course of announcing the orders which he was disposed to make in the residence and contact proceedings without publishing or otherwise providing his reasons for such orders. Whilst there may be cases where that practice is appropriate, it is difficult, with respect, to understand the necessity or indeed the desirability of having done so in a case such as this.
As has been mentioned the effect of the orders proposed was to change a four year status quo. The hearing, no doubt for good reason, had commenced on 1 December 2004 according to the records of the Federal Magistrates Court, and occupied hearing time on 2 and 23 December, 7 February, 21 and 22 March 2005.
REASONS OF THE FEDERAL MAGISTRATE
The learned Federal Magistrate published reasons for declining to grant a stay. It is appropriate to refer briefly to those reasons.
His Honour referred to the duration of the hearing and recorded, consistent with the substantive orders which he had evidently just made, that it was “My decision that [the child] should reside with her father”. The learned Federal Magistrate then said, “I will give detailed reasons for judgment and they will be published within six weeks”. Some three months have passed but there has been no sign of the reasons for judgment.
His Honour referred to matters which he was obliged to take into account in determining whether or not to grant a stay of the substantive orders which he had just made and referred at paragraph 12 of his judgment to a directive with respect to the first and foremost of such matters being, “What is in [the child's] best interests pending the outcome of any appeal that the mother may continue”.
His Honour said that he was obliged to have regard to the hardship to be suffered by either of the parents and recorded that there was no evidence before him as to the hardship to be suffered by either of them.
10. His Honour then recorded that he was required to take into account the merits of the appeal and, having discussed what apparently was a draft Notice of Appeal, necessarily prepared in haste and without the benefit of his Honour's reasons for judgment. His Honour said at paragraph 17, “At the end of the day, it seems to me on balance, that probably the lack of merit in an appeal is greater than the merits of the appeal proposed at this stage by the mother”. With great respect to his Honour, how he could find, in circumstances where a litigant has been denied the benefit of reasons for a decision which so significantly affected her rights and the welfare of her child, that an appeal has a lack of merit is difficult to understand. With great respect to his Honour, the absence of reasons should have weighed heavily on his thinking in terms of whether or not to grant a stay. This is particularly so given that a stay, as is well known, can be granted on terms. Those terms could have included the duration of any stay.
11. His Honour found that the mother was bona fide in relation to the appeal. Nothing turns on that for present purposes. At paragraph 19, he referred to the absence of a clear indication as to when the appeal might be heard and determined. With respect to his Honour, the findings he appears to have made in that regard were rather more supportive of the granting of a stay than not, particularly given the discussion which followed in paragraph 20 of his judgment.
12. Having identified at paragraph 12 of his reasons that the major consideration, the paramount consideration, was the welfare of the child, his Honour returned to that topic at paragraph 21. There follows a discussion which, with great respect to his Honour, proceeds on the tenuous basis that his decision would not be overturned. There is no consideration by him of the alternate scenario, namely that the appeal may have been successful.
13. His Honour concluded at paragraph 28:
At the end of the day, I am not satisfied that to grant a stay would now assist at all in relation to [the child's] recovery from the anxiety from which she at present is suffering. In fact, to the contrary.
14. His Honour did not anywhere in his reasons for judgment consider ways in which, what he discussed and considered at paragraph 23 to be, it would seem, the most significant single factor in the proceedings before him, could be addressed in the interim. Without the benefit of his reasons for judgment and findings of fact in the substantive proceedings, this Court is not able to reach any conclusions in relation to that topic beyond those recorded in the judgment.
RELEVANT LAW
15. The law which governs this appeal is not in doubt. It is necessary that appellable error be demonstrated in the sense which has been accepted for decades in this country, at least since the decision of the High Court in House v The King (1936) 55 CLR 499.
16. With great respect to the learned Federal Magistrate, on his judgment of 22 March 2005, as matters then stood, the decision can be seen as erroneous on several grounds. There was a failure to consider a number of relevant matters as previously mentioned. There was in particular in that regard, a failure to consider the impact of the absence of reasons, the possibility of a stay for a limited period to enable the reasons to issue and the appeal be brought expeditiously and properly argued and determined, and the failure to consider alternate scenarios in the interim which would have had the effect of ensuring contact between the father and the child and ongoing therapy with Ms H. Moreover having regard to the last of the various appellant grounds discussed by the High Court in House v The King (1936) 55 CLR 499, it is clear that there was a failure to exercise the discretion in a manner which fell within the scope of a reasonable exercise of that discretion.
17. Absent a finding that the child would be at risk or in danger by leaving her with her mother, at least until the reasons for judgment were delivered, to refuse a stay in circumstances involving, as this case did, at least a four year status quo between the child and her mother would not, in this Court's view, constitute a reasonable exercise of discretion.
18. If the appeal were to be determined on matters as they stood at 22 March 2005, the appeal would be allowed. Matters however do not stop at 22 March 2005. Each party and the Separate Representative have, subsequent to 22 March 2005, by consent of each other party to the proceedings, filed further evidence pursuant to s 93A(2) of the Family Law Act 1975 (Cth) (“the Act”). It might be inferred that the effect of such further evidence, at least such evidence as was filed on behalf of the appellant mother, was to demonstrate that “the order under appeal is erroneous”.
19. The majority of the High Court, McHugh, Gummow and Callinan JJ, suggested in CDJ v VAJ (1998) 197 CLR 172, paragraph 109 that:
One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
Their Honours also made clear in paragraph 107 of their judgment:
Nothing in s 93A(2), for example, prevents the respondent to the appeal from bringing a motion to adduce further evidence to support the orders made.
20. The Court thus has further evidence on the one hand on the part of the appellant seeking to demonstrate to the extent necessary that the decision of the learned Federal Magistrate to refuse a stay was erroneous. On his part, the father has filed an affidavit to demonstrate that the decision of the learned Federal Magistrate was not erroneous. The father has been supported in that regard by the Separate Representative who has filed three affidavits in the proceedings.
21. It is appropriate to consider the further evidence. As their Honours in the majority made clear in CDJ v VAJ, the approach of an appellant Court to further evidence is to determine the impact of that further evidence if it were accepted, that is to say if the evidence was accepted as true as opposed to the evidence being received by the Court.
22. The appellant, in her affidavit, deposed to a number of matters which related to the judgment of the learned Federal Magistrate. Part of her difficulty in relation to that further evidence is that the Court does not have the benefit of the learned Federal Magistrate's reasons for judgment in the substantive proceedings. It is apparent from the affidavit and clear beyond doubt in the submissions of learned counsel for the mother on hearing the appeal last Friday, that a significant portion of the appellant's challenge to the decision, both in relation to the stay and substantive orders of the learned Federal Magistrates, relates to the rejection of expert evidence of Dr S, child psychiatrist.
23. In the affidavit relied upon by the appellant and sworn 21 June 2005, the mother deposed in some detail to matters which occurred during the course of the trial. It is difficult without the reasons for judgment to appreciate the significance of the matters there referred to. To the extent that they impacted upon the substantive appeal, they are no doubt matters which may assume significance at that time. It is difficult to see on what basis they could impact upon the refusal of a stay, given the matters to which reference has been made in the judgment of the learned Federal Magistrate and the judgment of this Court. It is not seriously in doubt that the learned Federal Magistrate identified the factors relevant to the exercise of his discretion, but, for the reasons which this Court has briefly given, the exercise of that discretion miscarried notwithstanding such correct identification.
24. At paragraph 24 and following, the mother set out a number of matters in relation to her concerns and also to events subsequent to judgment, in particular an incident on or about 17 June 2005. A conversation was there referred to, the effect of which seems to be that the father may have made some undesirable or inappropriate statements about contact at that time. It seems that whatever was and was not said however, contact occurred as per the Court’s orders.
25. Nothing in the affidavit of the appellant mother, to which reference has been made, would demonstrate appellable error on the part of the learned Federal Magistrate. It must be remembered of course to this point, nothing falls on that because, for reasons the court has given, the appellant mother has, in this Court's view, made out her challenge to the refusal of a stay.
26. The real focus of the further evidence is in reality therefore whether the further evidence filed on behalf of the father and/or the Separate Representative can have the other effect to which the majority referred in CDJ v VAJ at paragraph 107.
27. As will be seen, the further evidence comprises, in the case of the father, matters subsequent to judgment, the effect of which seems essentially to suggest that the child has settled well in his household. So far as it goes, whilst that would be some evidence in support of the learned Federal Magistrate refusing the stay, the Court would not be persuaded that, standing alone, the affidavit of the father of 22 June 2005 would have the effect identified by their Honours at paragraph 107 of CDJ v VAJ.
28. The evidence of three witnesses, contained in affidavits relied upon by the Separate Representative, requires rather more careful consideration. First in increasing order of significance for present purposes is the affidavit evidence of Mr M, who is the acting school principal of the school attended by the child. Whatever the outcome of these proceedings, the child’s schooling has not been changed and will not be as a result of the substantive orders of 22 March. The child’s school could not assume significance in this appeal.
29. In his statement attached to his affidavit, Mr M set out conversations with the appellant mother on 16 June 2005 and a conversation with Ms H. But for the fact that Ms H swore an affidavit in the proceedings, questions could arise as to the extent to which the conversation with Ms H, other than that it occurred and constructed relevant secondary hearsay, would perhaps arise.
30. Mr M deposed to a further conversation with the child, on 17 June 2005. This was the morning of a Friday which was to and in fact did precede a contact event. Whilst there is no reason not to accept what Mr M says, it could not realistically be said that the conversation supported the decision of the learned Federal Magistrate at the time he refused the stay on 22 March.
31. The next affidavit relied upon by the Separate Representative was that of Mr G who is an assistant school principal at the child’s school. Mr G is the child's class teacher for 2005. Annexed to Mr G’s affidavit was a brief statement setting out the child's academic progress this year. Objectively, given that the child was living with the mother for about a month covered by that statement and a somewhat longer period with the father pursuant to the orders of 22 March 2005, it could not realistically be suggested that anything in relation to the child's academic progress would impact upon the appeal against the refusal of a stay on 22 March.
32. In the final paragraph of his statement Mr G recorded a conversation with the child on 10 June. What one should make of that for the purpose of this appeal is not clear but it is clear that that statement and the balance of Mr G’s statement attached to his affidavit could not realistically be regarded as evidence which supported the refusal of a stay on 22 March.
33. Turning then to the affidavit of Ms H, it is apparent that Ms H is a registered psychologist. Ms H had been “providing therapeutic counselling to [the child] which have included sessions with both of her parents since December 2004”. The attachment to Ms H’s affidavit is a report prepared at the request of the Separate Representative and dated 22 June 2005. In her report Ms H refers to having “continued to provide therapeutic counselling in accordance with these orders”, they being the orders of 22 March 2005:
on a regular basis since that time. During this period I have seen [the child] on her own and in the presence of significant others, eg the father, the mother and the maternal grandparents. I have also seen the grandfather with the father and I have spoken with [the child’s] school principal, acting principal and class room teacher on a number of occasions.
34. Ms H then referred to the child's statements and behaviour subsequent to the making of the orders. It seems, not surprisingly, that the child has manifested mixed emotions over that period of time. Ms H set out the therapeutic counselling history, particularly at page 2, without specifying in great detail when and for what duration the sessions occurred.
35. At paragraph 3.9 Ms H suggested that the child has:
adapted remarkably well to her changed living arrangements, seemed to be coping well with the separation from the mother particularly since having regular contact (indistinct) with the mother.
36. She further opined that:
Whilst the child is still primarily attached to the mother, [the child] has been able to use the father and paternal grandparents as a secure base in order to manage her emotional response to being separated from her mother.
37. Ms H then suggested, no doubt correctly, that the child has “already undergone significant transition since the orders were made in March 2005”. She then expressed the opinion that:
if the child were returned to the mother's care pending the outcome of the appeal [the child] would obviously be pleased as this is where she would prefer to live. With respect to such a proposal there are a number of consequences that need to be taken into account.
38. With apparent even-handedness, Ms H then said that returning the child to the mother until the appeal was heard:
may impact on the child's relationship with the father. It is clear that the mother has had difficulty accepting [the child] has had a genuine positive relationship with [the father] since being placed in his care.
39. It is unclear:
whether she would be able to promote [that is the mother] and/or positively facilitate contact with the father if [the child] showed signs of negativity towards him whilst awaiting the outcome of the appeal.
40. Ms H further noted that if the appeal was unsuccessful and the child was to continue residing with the father:
[The child] would have to deal with separating from the mother a second time. It is unclear how the child would cope with a second separation particularly if she feels the need to express negativity towards the father during the interim in order to align with the mother.
41. Ms H then set out what in her professional opinion would be important in the interests of the child in the event of this appeal succeeding and the child being retuned to the mother pending the hearing of the appeal.
42. The Court was referred to the decision of the Full Court in CSN v JBN (1998) FLC 92-833, a decision of Lindenmayer, Kay and Mullane JJ. In that case the Court dealt with a case where their Honours found that the trial Judge erred and that a stay should have been granted but concluded that, given the passage of time since the decision was made, and the circumstances which had developed, it was now inappropriate to grant a stay.
43. At this point it is relevant to note a number of matters. The first is that the appeal is currently fixed for hearing on 5 August, that is a little over a month away. Perhaps more significantly, subject to what transpires when judgment is given, there is every prospect that the appeal could be heard by a bench of three judges on the week of 25 July. In terms of urgency and indeed in the greater interests of justice, there is much to suggest that this should happen. Assuming that that is to occur the appeal will be heard in less than four weeks.
44. The evidence of Ms H is compelling. As she points out, if the stay is now granted as a result of this appeal being allowed, the child will be returned to the mother. If the appeal is unsuccessful then the scenario described by Ms H will potentially arise. It is important to note two things in the evidence of Ms H. The first is that the child's primary attachment remains with her mother. The second is that the child's wishes, which one would think would assume significance and given weight, remain to reside with her mother.
45. It cannot be realistically said in the circumstances to which the Court has referred that to refuse the stay would in the circumstances now prevailing render nugatory the fruits of success on appeal. Moreover, as was the case in the decisions of CSN v JBN, notwithstanding that the stay should have been granted on 22 March, the Court must look at the matter in light of the further evidence in order to determine whether in all the circumstances the trial Judge's decision was erroneous.
46. As would be immediately obvious, it is somewhat artificial that the operation of evidence subsequent to a decision which was erroneous has the effect of “validating” an erroneous decision. That, as the decisions of the High Court in CDJ v VAJ and the decision of the Full Court in CSN v JBN make clear, is precisely the effect further evidence pursuant to s 93A can have. The logic underpinning that construction of s 93A as it emerges from the High Court is unassailable.
47. Not without great sympathy for the mother, the Court is satisfied that the further evidence of Ms H and in particular the paragraphs quoted at length from page 4 of her report attached to her affidavit, has the effect of supporting the decision of the learned Federal Magistrate. That is not to say that the appeal in relation to the substantive orders has or does not have merit. That is not a matter which anyone can speculate productively about. There is a presumption that the decision of the learned Federal Magistrate is correct and that presumption must apply when considering the appeal against the refusal of a stay.
48. For the reasons thus given, the Court is not satisfied that whilst the stay should have been granted on 22 March 2005, the further evidence received under s 93A the Court supports the refusal of the stay albeit for reasons quite different to those provided at that time by the learned Federal Magistrate. The order of the Court is accordingly that the appeal against the refusal of a stay on 22 March 2005 is refused.
ORDERS
49. The orders are:
That the appeal against the refusal of a stay be dismissed.
That the child representative’s application for costs of $236.50 with respect to the report of Ms [H] be reserved to the Full Court.
That there otherwise be no order for costs with respect to the appeal against the refusal of the stay of 22 March 2005.
That the hearing date for the substantive appeal, 5 August 2005, be vacated and the appeal listed for hearing before the Full Court of the Family Court on the week commencing 25 July 2005.
That by no later than 8 July 2005 the appellant mother file in the Sydney Registry of the Court, four (4) copies of the appeal books, together with a certificate pursuant to Chapter 22 Rule 22.22(2) of the Family Law Rules, and serve two (2) copies of the appeal books on the solicitors for the respondent father, together with a copy of the certificate and two (2) copies on the child’s representative. Such Appeal Book shall include:
· Orders of the Federal Magistrate;
· Transcript of the proceedings relevant to the appeal; and
· Application and response and any relevant affidavit material;
· Exhibits tendered before the Federal Magistrate;
That by no later than 19 July 2005 the appellant mother file in the Sydney Registry of the Court, four (4) copies of the appeal books, together with a certificate pursuant to Chapter 22 Rule 22.22(2) of the Family Law Rules, and serve two (2) copies of the appeal books on the solicitors for the respondent father, together with a copy of the certificate and two (2) copies on the child’s representative. Such Appeal Book shall include:
· Any Amended Notice of Appeal;
· Reasons for judgment of the Federal Magistrate; and
· Summary of Argument.
That the respondent father and the child’s representative file and serve a Summary of Argument by 5pm on the day preceding the hearing of the appeal.
That the costs of and incidental to these proceedings be reserved to the Full Court.
That to the extent that these orders do not comply with any provision in the Family Law Rules, then such compliance be dispensed with.
10. That each party have liberty to apply for any further directions to the Honourable Justice Coleman (or if not reasonably available to another member of the Appeal Division) upon four (4) days notice in writing to the other party and to the Appeals Registrar in the Sydney Registry.
I certify that the preceding
49 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Court.
Associate
Date: 21/07/05
Key Legal Topics
Areas of Law
-
Family Law
-
Civil Procedure
Legal Concepts
-
Appeal
-
Stay of Proceedings
-
Jurisdiction
-
Costs
-
Natural Justice
0
2
0