Thomas and Hogan
[2012] FMCAfam 1004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| THOMAS & HOGAN | [2012] FMCAfam 1004 |
| FAMILY LAW – Parenting proceedings – application for stay of orders pending appeal. |
| Family Law Act 1975, ss.117(1), 117(2), 117(2A) Federal Magistrates Court Rules 2001, r.16.05(2)(a) |
| Aldridge & Keaton (2009) FAMCAFC 106 Buljubasic & Buljubasic, (1999) FLC 92-865 BZAAG v Minister for Immigration and Citizenship [2011] FCA 217 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Comcare v John Holland Rail Pty Ltd (No.3) [2011] FCA 164 Garrett & The Department of Communities, Child Safety and Disabilities Service (2012) FamCA 354 Hadkinson v Hadkinson [1952] 2 All ER 567 In the Marriage of Fahmi (1995) FLC 92-637 Malpass and Mayson (2001) 27 Fam LR 288 R v Fisher [2009] VSCA 100 Sparks & Eberle (unrep., BR 2362 of 1998, 10 July, 2000) Taylor & Taylor (1982) CLR 1 |
| Applicant: | MS THOMAS |
| Respondent: | MR HOGAN |
| File Number: | CRC 250 of 2010 |
| Judgment of: | Jarrett FM |
| Hearing date: | 26 July 2012 |
| Date of Last Submission: | 26 July 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 26 July 2012 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Balzola |
| Solicitors for the Applicant: | Robert Balzola & Associates |
| Counsel for the Respondent: | Mr J Priestley |
| Solicitors for the Respondent: | MBT Lawyers |
| Solicitor for the Independent Children’s Lawyer: | Ms Steiner |
| Solicitors for the Independent Children’s Lawyer: | Burridge Harris & Flynn Solicitors |
ORDERS
The application in a case filed 27 June 2012 be dismissed.
The applicant pay the respondents costs of and incidental to the applications as agreed between the parties and failing agreement to be fixed upon written application to the Court within the next fourteen (14)days.
In the event no agreement can be reached:
(a)the respondent file and serve written submissions in relation to the quantum of costs within the time frame set out in order 1 hereof; and
(b)the applicant file and serve her submissions fourteen (14) days after receipt of the respondent’s submissions.
If either party desires a further oral hearing in relation to the quantum of the costs they may request such hearing in their written submissions.
IT IS NOTED that publication of this judgment under the pseudonym Thomas & Hogan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
CRC 250 of 2010
| MS THOMAS |
Applicant
And
| MR HOGAN |
Respondent
REASONS FOR JUDGMENT
Ex tempore
This is an application which has been couched in the form of an application for a stay of some orders that I made in these proceedings on 6 June, 2012. The application in a case filed on 27 June, 2012 asks that the final orders made in this case on 23 May, 2012 be set aside until an appeal from those orders has been heard.
The application asks for an order that the child, [X], continue to reside with his mother until such time as the appeal has been heard. There is also an application for a protection order to be set in place so that the child may not be removed from the mother or from the [omitted] area or New South Wales by the father.
The applicant mother in support of her application relies upon an affidavit that she filed on 1 May, 2012 which has been referred to in submissions as her “trial affidavit”. The trial took place on 22 May, 2012 and that was filed well before the trial.
There is another affidavit, upon which she relies, sworn on 27 June, 2012. There apparently, is some difficulty with that affidavit in the sense that the respondent’s Counsel and the respondent have not received a copy of that affidavit. The Independent Children’s Lawyer does not have a copy. Notwithstanding that, I intend to take that affidavit into account. The respondent, for his part, relies upon his response to this application which was filed yesterday and an affidavit filed on 25 July, 2012 except for paragraphs 24 and 25.
There was a request for an adjournment of the proceedings so that the solicitor who represents the applicant mother could get further instructions in respect of the respondent’s affidavit, it only having been served yesterday, but there was no particular part of the affidavit that was identified as requiring further instructions and, by and large, although, I do not say entirely, the affidavit consists of annexing correspondence which has passed between the parties and their respective lawyers from time to time. Further, the application for an adjournment was refused because it became apparent that instructions from the mother could not be received in a prompt way. I was prepared to stand this matter out of the list for some hours today while the instructions could be obtained. The operative part of the affidavit is only some four pages long although the annexures run to some 75 or 76 pages, but I am told that the applicant mother is not with her lawyer and he has not met with her and he has indicated that she is contactable by telephone but that too can be problematic in that she never or rarely answers the phone herself.
The orders that I made in May provided for [X], one of the parties’ children, to live with his father. [X] ordinarily lives with his mother. The proceedings before the Court were commenced in 2010 and there have been from time to time interim orders made for time between [X] who is about 10 years of age and his father. Those orders have met with a certain measure of success, from time to time, but there have also been problems.
The application was listed for trial and on the trial date the mother did not appear. She says in her affidavit of 27 June, 2012 these things:
42. Respondent respectfully wishes to inform the court that on Monday, 21 May 2012, at approximately 4.45 pm the day before the hearing in Brisbane the respondent spoke to Justice Jarrett’s Associate, a male person, whose name is unknown at present, to advise that the respondent was unable to attend the court hearing the following day as she was ill and had a medical certificate from Dr S. Dr S faxed his letter to the court on Monday 21 May 2012 for the respondent.
I pause to interpolate that my associates are both female. She goes on in paragraph 42:
Justice Jarrett’s Associate said words to the effect “No GP can dictate to Justice Jarrett or this court so you catch the train and be here or orders will be made without you”. This was an impossibility for the respondent and a denial of natural justice.
43. Respondent also requested an adjournment as her legal counsel had withdrawn due to legal aid being refused in this matter and required time under section 57, Legal Aid Commission Act to resolve the issues and seek retention of legal counsel. This was refused.
44. Applicant also refused to grant adjournment to the Respondent.
45. Respondent advised Justice Jarrett’s associate that she was willing to attend via telephone or other electronic means which was rejected.
46. Respondent was without funds or resources to travel via train and bus to the court which is a 15 hour journey which is also unreasonable as it was impossible for her to achieve.
I know nothing, personally, of those matters. If there was such contact with my associate, who I indicate is female, it was, in my view inappropriate: R v Fisher [2009] VSCA 100; Comcare v John Holland Rail Pty Ltd (No 3) [2011] FCA 164.
Moreover, even if what the applicant says is correct and she did seek to apply for an adjournment via a telephone conversation or some other contact with my associate it was, nonetheless, appropriate for my associate not to bring it to my attention. In Buljubasic & Buljubasic, (1999) FLC 92-865, the Full Court of the Family Court of Australia was constituted by Lindenmayer, Finn and Warnick JJ. Lindenmayer J delivered the leading judgment and in respect of the issue now under consideration his Honour said this:
Just before I come to that, I think it is appropriate to observe that in this modern day there seems to be a tendency for people to believe that it is an appropriate way to communicate with courts, or this court at least, by sending facsimile transmissions to the registrar in the belief that they will come to the attention of the trial Judge. Ordinarily speaking, that is not a proper way for any litigant to seek to communicate with the court. Whilst it is appropriate to communicate with the registry about procedural matters in that fashion, no doubt, it is not an appropriate way for a litigant, whether represented or unrepresented, to seek to communicate with the judge who is to hear the case.
Ordinarily speaking, if a party to proceedings, whether represented or otherwise, seeks to have an indulgence from the court in the form of an adjournment or an extension of time for doing something which has been listed to be disposed of on a particular day, the litigant has an obligation either to appear before the court in person to seek that indulgence or to send a legal representative on his or her behalf to make a proper application to the court for that relief. It is not, generally speaking, an appropriate way to seek an adjournment of proceedings which are listed for hearing before the court to send a letter, whether by facsimile or otherwise, to the registry on the morning of the hearing setting forth the request for an adjournment and stating the grounds upon which the application is made.
Later Finn J, said this at paragraph 49:
I would also want to endorse strongly the comments that have been made by the presiding Judge regarding the importance of adherence to traditional practice that those who seek from the court an adjournment of their matter, should appear themselves, or by legal representative, to seek the adjournment. I deplore the apparently ever increasing practice of sending letters, faxes and telephone communications to the court for the purpose of seeking an adjournment.
Warnick J agreed.
On 22 May, 2012 the trial proceeded in the absence of the respondent mother and orders were made which reversed the residence for [X]. Since that time, [X] has remained other than in his father’s care, that is, to say he does not live with his father as the orders provide. It seems to be common ground between the parties that the orders have not been complied with in the sense that [X] is not living with his father and the reason for that is that the mother has prevented it. There does not seem to be any real contention that is not the position.
In any event, it is clear from the material upon which she now relies that she knows of the orders, that she is the person who is responsible for [X] in the sense that [X] was living with her and, nonetheless, the orders have not been carried into execution.
In Garrett & The Department of Communities, Child Safety and Disabilities Service (2012) FamCA 354, Forrest J said this at paragraph 24:
24. I am satisfied that there undoubtedly exists a discretion in this Court to refuse to entertain an application by a party who is in contempt of this Court. I refer particularly to the decisions, authoritative as they are, of the Full Court of this Court in the Marriage of Fahmi (1995) FLC 92-637 and Malpass and Mayson (2001) 27 Fam LR 288. Those Full Court decisions, as I have said this morning in argument, have been followed and applied by former Justice Warnick of this Court, and Federal Magistrate Jarrett of the Federal Magistrates Court. Those Full Court decisions particularly refer back to a very pertinent decision of the British Court of Appeal in the case of Hadkinson v Hadkinson [1952] 2 All ER 567. In his decision in that case, Lord Denning said at 574:
It is a strong thing for a court to refuse to hear a party to a cause and it is only to be justified by grave considerations of public policy. It is a step which a court will only take when the contempt itself impedes the course of justice and there is no other effective means of securing his compliance.
Lord Denning went on to say at 575:
Applying this principle, I am of the opinion that the fact that a party to a cause has disobeyed an order of the court is not of itself a bar to his being heard but if his disobedience is such that so long as it continues it impedes the course of justice in the cause by making it more difficult for the court to ascertain the truth or to enforce the orders which it may make, then the court may, in its discretion, refuse to hear him until the impediment is removed or good reason is shown why it should not be removed.
It is clear from Warnick J’s decision in Sparks & Eberle (unrep., BR 2362 of 1998, 10 July, 2000) that the Court does not have to make a positive finding of contravention or contempt in the sense of those terms as used in the Family Law Act1975 before the discretion, spoken of by Lord Denning in Hadkinson & Hadkinson, is enlivened. The Court merely needs to be satisfied that the moving party is in breach of some orders of the Court. In this case, I think I can be comfortably satisfied that not only is the mother in breach of the orders of the Court, but that she knows that she is. The very fact that she has engaged legal representation but is not available with that person this morning is curious. Her legal representative has described her as “in hiding”.
Having regard to the principles to which I have just referred, I am not prepared to entertain the mother’s application on any basis. The submissions made by the Independent Children’s Lawyer have significant merit in my view. The mother does not come to this Court with information about [X]’s best interests or about his welfare. She does not say, in evidence, in sworn testimony, what his circumstances are. It may be the case that she wishes to keep his location secret but that would not prevent her from providing the Court with some evidence about his welfare now, particularly in light of the fact that the Court has come to the conclusion, by dint of the orders that were made in May, that [X]’s welfare would demand that he live with his father.
But put shortly, there is absolutely no evidence placed before me which tells me anything about [X]’s circumstances now and it is, in my view, inappropriate, for the reasons set out in cases like Fahmi, Malpass & Mason, Garrett and Hadkinson to entertain the mother’s application. I dismiss it on that basis.
If I am wrong and my discretion has miscarried and I ought to consider the application on the merits, then for the following reasons I would nonetheless dismiss the application.
Aldridge & Keaton (2009) FamCAFC 106, (stay appeal) is a case which dealt with an appeal against the Chief Federal Magistrate’s decision not to grant a stay of certain parenting orders. At paragraph 18 of that judgment, their Honours of the Full Court set out the principles to be applied. They said:
18. The principles to be applied in determining an application for a stay of orders, both in the general law and in respect of parenting proceedings, are also well known.
Their Honours then set out a number of authorities. They go on:
The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:
· The onus to establish a proper basis for the stay is on the applicant for the stay. However, it is not necessary for the applicant to demonstrate any special or exceptional circumstances.
· A person who has obtained a judgment is entitled to the benefit of that judgment.
· A person who has obtained a judgment is entitled to presume the judgment is correct.
· The mere filing of an appeal is insufficient to grant a stay.
· The bona fides of the applicant.
· A stay may be granted on terms that are fair to all parties. This may involve a court weighing the balance of convenience and the competing rights of the parties.
· A weighing of the risk that an appeal may be rendered negatory if a stay is not granted. This will be a substantial factor in determining whether it will be appropriate to grant a stay.
· Some preliminary assessment of the strength of the proposed appeal, whether the appellant has an arguable case.
· The desirability of limiting the frequency of any change in a child’s living arrangements.
· The period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time.
· The best interests of the child, the subject of the proceedings, are a significant consideration
Dealing with those considerations then, I note that the onus is on the mother to establish a proper basis for the stay and that the mere fact that she has filed an appeal is insufficient, of itself, to warrant the granting of a stay. The father is entitled to assume that the judgment he has obtained is correct and he is entitled to the benefit of that judgment, insofar as it delivers any benefits to him. The purpose of a parenting judgment of course is to make orders which are in the best interests of the child concerned. There is no reason advanced to support the proposition that [X] ought not to have the benefit of the orders.
Having regard to the orders that were made it is of considerable significance that the mother has placed no evidence before the Court whatsoever about [X]’s current arrangements and whether those current arrangements best suit, or suit at all, his needs.
There is no evidence before me about the period of time in which the appeal can be heard.
I note that under the current arrangements, that is, the arrangement whereby [X] and his mother are at a location unknown and the mother refuses to comply with the order that has been made, there are no satisfactory arrangements for [X]’s relationship with his father.
It is desirable to limit the frequency and change of a child’s living arrangements but, having determined that those arrangements should be changed, it seems to me that there is on the mother, nonetheless, an onus to establish that the stay should be granted.
It is, I accept, difficult to weigh the prospects of an appeal. Regrettably, the reasons for my decision have not yet come into the hands of the parties. At the conclusion of the trial, I indicated to the parties who attended that I would deliver written reasons for my decision and the delay in doing so, as I have already stated, is regrettable. But the orders made accorded with the conclusions of the family consultant who gave evidence in the matter and with the submissions of the Independent Children’s Lawyer.
The matters, to which I have referred, indicate in my view that a stay ought not to be granted. No basis for a stay is made out on the merits of this application.
It was argued that there were two courses open to the Court at the hearing of the trial when faced with the mother’s non-appearance. The first was to make interim orders but I do not understand why that would lead to any less difficulty than there is now. There would be orders in place. Presumably, if the orders that I made on a final basis had been made on an interim basis, the mother would still have refused to comply with them and the position in which all of the parties and, in particular, [X] finds himself now would be no different.
What would be different is that there would be the prospect of a further hearing before this Court on a final basis. But for the reasons that I have already expressed, it would be unlikely that the mother would be heard in those proceedings if she failed to comply with the interim order which she now says the Court should order in light of her non-appearance. The second thing she says is that the Court ought to have adjourned the application because she had asked for that and she did not appear.
I have already dealt with that argument in part. But the fact that she did not appear and the fact that the orders were made in her absence means that she has an entitlement to apply to have the orders set aside. She has the ability to apply to have the orders set aside, pursuant to the common law principles expressed by the High Court in Taylor & Taylor (1982) CLR 1 but more than that, there is a statutory right under rule 16.05(2)(a)of the Federal Magistrates Court Rules2001 to make such an application. She could simply file an application, returnable before the Federal Magistrates Court, supported by all of the material that she wished to put before the Court, and that application could be considered. It might succeed, it might not. It would depend, of course, upon the evidence relied upon by the mother in support of it. But the point is this. It would obviate the necessity for an appeal, at least potentially, and it would therefore be more cost-effective, more efficient and far quicker for the mother.
That is an option that she has available to her and, one which she could be expected to exercise before an appeal was made see for example BZAAG v Minister for Immigration and Citizenship [2011] FCA 217 at [27] – [37].
Now, that’s a slightly different case to this because the notice of appeal in this case has been filed and there has been an order extending the time within which that can be done. But nonetheless, it is still of course open to the mother and something which, in my view, is one of the discretionary considerations which informs the outcome of her application for a stay if it is determined on the merits.
For all of those reasons, therefore, the application for a stay and the mother’s application in a case, filed on 27 June, 2012 is dismissed.
During the course of argument, Mr Priestley for the father sought orders that the mother deliver [X] to a particular place at a particular time. He pointed out that the orders that were issued do not provide a positive obligation on her to do that. Of course, the orders did not require – did not need to provide a positive obligation on her to do that. The provisions of the Family Law Act1975 make it very clear that a party is obliged to comply with orders but, nonetheless, the point made by Mr Priestley is clear.
However, I do not intend to make the order sought. No notice of the request for such an order was given to the other side and in the absence of that notice; it is, in my view, inappropriate to consider the application further.
RECORDED : NOT TRANSCRIBED
This is an application for costs in respect of an application brought by the mother which I have, for reasons delivered earlier, dismissed. Ordinarily parties to proceedings under the Family Law Act1975 should bear their own costs: s.117(1) of the Act. Section 117(2) of the Act provides that the Court can make a different order as to costs if it thinks in the circumstances of the case it should do so.
In determining whether it should exercise that discretion the Court needs to take into account the factors set out in s.117(2A).
The first is whether the parties are legally aided. There is no evidence before me one way or the other about whether the parties are legally aided.
The second is the financial circumstances of the parties. Again, on this application, there is no evidence before me, although in respect of the mother’s financial circumstances, having regard to the paragraphs of her affidavit filed on 27 June this year that I extracted in my earlier reasons, and which I accept the father and the Independent Children's Lawyer have not seen, there is an implication to be drawn that the mother is not of sound financial circumstances. That of course may not be a correct inference, and it may be that it is simply the case that what she reports in her affidavit is incorrect, but I take that evidence into account.
These proceedings were not brought about by reason of a breach of an order of any of the parties, although the mother sought by these proceedings to be relieved of the obligations that are cast upon her to deliver up [X] to live with his father. She is presently not complying with that order, but these proceedings are not brought about because of that.
The proceedings were instituted by the mother. She has been wholly unsuccessful. There is something which sits uneasily with the notion that a person who is actively frustrating the implementation of orders of a Court then seeking to invoke the processes of that very same Court to avoid the consequences of the orders that are being frustrated. Indeed, that difficulty – that uneasiness – informs the decisions that I have earlier referred to such as Hadkinson and Fahmi.
The mother, as I repeat, has been wholly unsuccessful and it was not suggested that there were any offers made between the parties which are of any particular significance.
The mother’s conduct, the fact that she has been wholly unsuccessful in her application, the fact that these proceedings have arisen out of her failure to comply with the orders (in the sense that she seeks to be relieved from the burden of them), all point to a conclusion that an order for costs on the unsuccessful application is appropriate.
Whether the order ought to be on an indemnity basis or not requires further scrutiny. Sheppard J in the Federal Court of Australia in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 is generally considered to have delivered the leading judgment on when indemnity costs are appropriate, and there is some force in the argument made for the father that the conduct in this case, the way in which this application has been brought, and the background against which it has been brought, is something close to an abuse of the process of this Court, but, having regard to the nature of the proceedings generally, that is, that they involve the best interests of a particular child, and that there is no question that the application made by the mother was made with an eye to securing [X]’s welfare (at least as far as she perceives it), it seems to me that an order for indemnity costs is not appropriate.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Date: 17 September 2012
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