Tarritt and Department of Community Services

[2007] FamCA 1572

FAMILY COURT OF AUSTRALIA

TARRITT & DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES FOR NEW SOUTH WALES (NO. 2) [2007] FamCA 1572

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings

Family Law Act 1975 (Cth)

Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460 at 463
Clemett v Clemett (1981) FLC 91-013

DL v Director-General of New South Wales Department of Community Services (1996) 187 CLR 640
DP v Commonwealth Central Authority; JLM v Director-General New South Wales Department of Community Services (2001) 206 CLR 401
EJK & TSL (2006) 35 Fam LR 590
EJK & TSL (No. 4) [2006] FamCA 1022
Reichstein & Reichstein, [2007] FamCA 365

APPLICANT: Ms Tarritt

RESPONDENT:

Director-General

Department of Community Services

FILE NUMBER: SYC 6193 of 2007

DATE DELIVERED: 24 December 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 21 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Anderson

SOLICITOR FOR THE APPLICANT: Caldecott & Williams

COUNSEL FOR THE RESPONDENT: Mr Tockar

SOLICITOR FOR THE RESPONDENT: Roderick Best,
Legal Services Unit
Department of Community Services

Orders

1. That paragraph 1 of the order made 20 November 2007 be stayed until further order of the Full Court of the Family Court of Australia.

2. That pursuant to s 62G of the Family Law Act1975 (Cth), a report be prepared as a matter of urgency concerning the impact on the child … born … October 1996 of her resistance to being returned to the United States of America in the company of her father pursuant to any order of the Court.

3. That the mother, her servants and agents be restrained until further order, from taking the child to any psychiatrists, psychologists or counsellor for the purposes of counselling the child without the consent of the father and/or further order of the Court.

4. That the application in a case filed 3 December 2007 be otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Department of Community Services & Tarritt is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: SYC 6193 of 2007

MS TARRITT  

Applicant

And

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES

Respondent

REASONS FOR JUDGMENT

1. On 2 November 2007 I heard a contested case under the provisions of the Hague Convention on the Civil Aspects of International Child Abduction.  On 20 November 2007 I delivered judgment and made an order for the return of the child, born … October 1996 to the United States of America.  On 30 November 2007 the child's mother filed a Notice of Appeal.  On 3 October 2007 the mother filed an application for a stay of my orders pending the hearing of the appeal.  I heard that application on 21 December 2007.  In between those dates the appeal was fixed to the sitting commencing on 5 February 2008, some six or seven weeks away.  Because of the unusual nature of the case I reserved my decision over the weekend until today.

2. The grounds of appeal are that I:

   (1)erred in failing to hold on the evidence that there was a grave risk that the return of the child would expose her to physical or psychological harm or otherwise place her in an intolerable situation;

   (2)erred in interpreting the law of Iowa in holding that there was no impediment to the jurisdiction determining the future custody position of the child.

   (3)erred in exercise of my discretion both generally and about a number of issues.

3. Fundamental to the mother's application for a stay is the point that to refuse a stay would make any appeal nugatory.  Counsel for the mother argued that the law relating to a stay was that set out in Clemett v Clemett (1981) FLC 91-013. There the Full Court said that:

   In determining whether a stay should be granted, the welfare of the child is the paramount consideration. It is especially desirable that the frequency of any changes in the custodial arrangements relating to the child should be limited as much as possible. If the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt with within a reasonable time and the present circumstances of the child are satisfactory, it will be appropriate to grant a stay of proceedings for at least a short period. 

4. The Full Court recently considered Clemett in EJK & TSL (2006) 35 Fam LR 590. That was a case that would normally have attracted the Hague Convention concepts but for the fact that the parties came from Korea which is not a Hague Convention signatory. The substantive issue was whether or not to allow the wife in Australia to conduct a parenting case or order the child's return to Korea. The litigation saw a number of hearings and applications to the Full Court in a short space of time. In the case which I have cited Dessau J had ordered the return of the child and refused a stay, pending what was to have been a second appeal. The Full Court had to deal with the question of the trial judge's refusal to stay her orders. The Full Court said that both parties had said that the principles applicable to a stay were those set out in Clemett.  The Full Court noted that although the decision pre-dated the legislative amendments applicable at that time:

   …the child’s best interests, even if not the paramount consideration, on the facts of this case are a significant consideration.

5. The same parties litigated further and again returned to the Full Court only weeks later in EJK & TSL (No. 4) [2006] FamCA 1022, again in relation to a stay. Again, Clemett was discussed and the Full Court said:

   We consider it is helpful to our discussion (as did the Full Court in the first stay appeal) to repeat the relevant principles applicable to a stay in a parenting case as discussed in Clemett (supra).

6. It was argued before the trial judge in EJK & TSL that because the case was about the return to Korea, Clemett was distinguishable.  In the second EJK & TSL appeal the Full Court discerned that the central issue for the trial judge about whether or not to refuse the stay was whether a refusal would have rendered a successful appeal nugatory.  The Full Court said that that was a matter for the exercise of discretion but to be carried out having regard to the overarching principle of the child's best interests being the paramount consideration.  Clemett may be distinguishable for two reasons.  The first is that it was an appeal relating to a custody matter, whereas this case is governed by the Hague Convention considerations.  The latter is more of a forum issue than the former.  The second issue is that as the High Court of Australia said in DL v Director-General of New South Wales Department of Community Services (1996) 187 CLR 640, the paramountcy principle does not apply to the Hague proceedings, and in particular, the regulations relating to those proceedings.

7. Having said that however, the closeness of the proceedings to that which occurred in EJK & KGL convinces me that whilst the best interests principles do not strictly apply, they are certainly matters which should be carefully considered in respect of any matter involving a child.  In Reichstein & Reichstein, [2007] FamCA 365, Bryant CJ and Kay and Boland JJ, the law governing a stay was again considered. There, albeit about a stay from a Full Court decision pending a special leave application to the High Court, Bryant CJ which whom the other judges agreed, said:

   Rule 22.12 of the Family Law Rules 2004 (Cth) provides the procedure applicable to an application for a stay.

   The relevant law to be applied in considering an application for a stay pending appeal is well settled.  I refer to simply the cases of Federal Commissioner of Taxation v The Myer Emporium Ltd [No.1] (1986) 160 CLR 220; Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685, and Jennings Constructions Ltd v  Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681.

   In the latter case, Brennan J, as he then was, considered an application for stay pending determination of an application for special leave to appeal to the High Court.  He said at page 684:

   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.

   At page 685, his Honour said:

   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 the stay will cause loss to the respondent and fourthly, where the balance of convenience lies.

8. There is an argument about whether the test concerning the prospects of the appeal is that they must be "substantial".  The Full Court in EJK & TSL, the first stay case, said that even without taking a detailed examination of the grounds of appeal, "it could not be said" that "the appeal had no prospects of success" and referred to Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460 at 463. There is a distinction between the prospective appellant showing substantial grounds and raising grounds such as would enable me to say that there is no prospect of success. One of the grounds of appeal pleaded by the mother in this case is that I placed "too much weight upon the fact of retention" of the child by the mother and "too little weight upon relevant discretionary factors such as the length of residence in Australia and the reasons for [the child] being sent to Australia in the first place."

9. That ground complains about a discretionary issue and whilst it has long been held that appeals cannot or should not succeed on grounds associated with discretionary matters, it does raise the question of the best interests principle.  Thus when considering the prospects of success of the appeal I have taken into account that the mother may be permitted to argue that issue by the Full Court. Accordingly, I could not say that the mother has no prospects of success.  In relation to the question of the stay therefore, which if granted would enable the mother to attempt to argue a number of what I consider discretionary issues, I have also taken into account the issue of a refusal rendering the appeal nugatory.  Interestingly in DL (supra), Gummow J after quoting the passage from the judgment of Brennan J in Burgundy Royale, went on to refer to the fact that in Grassby v R (1989) 63 ALJR 248 Mason CJ identified the issue as to whether the grant of a stay is required to preserve "the subject matter or integrity of the litigation".

10. The integrity of the litigation here is whether or not the mother would be effectively precluded from arguing the custody question if the case returned to Iowa.  That leads to a consideration of the mother's ground of appeal that I failed to consider the evidence of the mother's expert about the law in Iowa and had applied my own interpretation.  An analogous situation occurred in DP v Commonwealth Central Authority; JLM v Director-General New South Wales Department of Community Services (2001) 206 CLR 401. There the High Court dealt with a Hague Convention matter in which the argument was that the undertaking to the Family Court that the father would do certain things in Greece if the proceedings were sent there, were of doubtful enforceability. The High Court said that it would have been necessary to suspend the order for return of the child until production of the evidence about the efficacy of the enforceability was obtained. The mother argues that my order for the return of the child is on the basis that the courts of Iowa have jurisdiction and she asserts that that is not so and wants to argue the point on appeal. That issue is a matter which must affect my discretion to grant a stay.

11. The issues before me therefore are:

    (a)is there is a substantial prospect that the appeal will succeed or conversely could I say that the mother has no prospects of success?  Kay J in Reichstein, to which I have referred, warned that it was dangerous to predict the outcome of matters before the High Court and I must say the same about the Full Court.  It is therefore important to look carefully at the prospect for the appeal on the face of the material. 

    (b)Has the appellant taken the appropriate steps to appeal and what is the delay? There can be no issue here as the appeal has been set down and it not far away having regard to the time the child has already spent in Australia.

    (c)Is it necessary to preserve the integrity of the litigation which means will the appeal be rendered nugatory by the refusal of the stay? 

12. Just before turning to the arguments of the mother and the department, each provided me with affidavit material, some of which was initially not before me because of being filed in Sydney.  That was a factor in my decision to adjourn over the weekend.  I have now read all of that material.  The mother and her present husband say the child was distressed upon being told of my orders and has said that she will refuse to get on the plane.  The mother deposed to a conversation with the child in which she alleges that her father said he would physically force her to return.  The father's material denies that that was said.  In my view none of that material assists me.  It is a matter for the parties to seek leave of the Full Court to deal with the question of new evidence. 

13. My decision was based upon the material provided to me at the time of the hearing.  The mother's counsel argued a number of matters but only three were of any significant weight.  They were: 

    (a)if the stay was refused and the order was given effect to, the appeal would be nugatory. 

    (b)there is a dispute about whether Iowa is forum in which the issue about the child's future custody can be determined.  Mr Anderson said for the mother that it was not clear.  He argued that the father agreed.  I do not read the father's written advice that way.  I acknowledge that it is an important issue in the case because without jurisdiction to determine the matter, my orders would be pointless. 

    (c)I did not apply my discretion properly having regard to the facts provided. 

14. To some extent the issue about Iowa depends on the mother's attitude.  In the initial proceedings before me I understood the mother to say that should would not return to the United States of America.  It appears that she has now written to the father saying otherwise, albeit obliquely.  Mr Tockar for the Director‑General said that the appeal could not succeed because it is a discretionary decision and as such the prospect of success must be seen as poor.  He argued that the issue of grave risk was fully canvassed and I had determined that matter on the facts.  The point of significance for the Director-General and one of significant concern to me was that the longer the child stayed in Australia, the greater the prospect of the mother's influence over her would be.  That would make the physical return to the United States of America more dramatic and more difficult.  In addition, if the mother failed on an appeal, the degree of difficulty was magnified. 

15. Both parties agreed that if I granted the stay I should order a report under s 62G of the Family Law Act 1975 (Cth) (“the Act”) for the purposes of assisting the Full Court. The parties differ about what should be canvassed in that report. The mother also sought the appointment of an Independent Children's Lawyer. I declined to take that course of action on the basis that there is no necessity for another lawyer to represent the interests of the child, having regard to the issues that can be adequately argued before the Full Court. In circumstances where there are arguable issues about the law in Iowa and its applicability, and more importantly, the prospect that an appeal would be nugatory, I could not say that the appeal has no merit.

16. I do not consider there is merit in the argument about the exercise of discretion but there may be an argument about the findings that I made that gave rise to the exercise of that discretion.  I propose to adopt a cautious approach because of the words of Kay J that it is dangerous to predict the outcome of an appeal, and in my view, even more so where the argument relates to the issue about Iowa being the inappropriate forum.  The balance of convenience therefore lies with granting the stay. 

17. The department raised the issue of the mother's attendance with the child upon a psychiatrist. The evidence is clear that the mother has taken the child to see someone. I propose to order that a report be prepared under s 62G of the Act and as such it is inappropriate for the child to be confused any more than she has been, nor should she be subject to any more questioning. I propose to grant an injunction as orally sought by the department. I think the Full Court may benefit from a family consultant's report on the impact of the child resisting her return to the United States of America, specifically in the company of her father, having regard to what has already happened in the delay after my orders. I see no reason for extending the report beyond that issue. Accordingly I propose to order that paragraph 1 of the orders that I made on 20 November 2007 be stayed pending the decision of the Full Court.

I certify that the preceding Seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate

Date: 15 January 2008