Thornton and Thornton (No 2)
[2015] FamCA 301
•24 April 2015
FAMILY COURT OF AUSTRALIA
| THORNTON & THORNTON (NO 2) | [2015] FamCA 301 |
| FAMILY LAW – PARENTING – Stay – Application for stay of final orders pending appeal – Where there are allegations of sexual abuse made by the mother against the father in relation to the children – Where it is sought that the father’s time with the children remain on a supervised basis until the appeal is determined – Where a stay is ordered on conditions – Where an order is made for the mother to file and serve an application in an appeal seeking an expedited hearing of the appeal as a condition of the stay granted. |
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Aldridge & Keaton (2009) FLC 93-421
Alexander v Cambridge Credit Corp (Receivers Appointed) (1985) 2 NSWLR 685
Clemett & Clemett (1981) FLC 91-013
CSN v JBN (1998) FLC 92-833
EJK v TSL (No 2) (2006) 35 Fam LR 590
FCT v Myer Emporium Ltd (1986) 160 CLR 220
Hock Hing v Foster (No 1) (1989) 13 Fam LR 79
Carlin & Carlin (1977) FLC 90-320
Kelly & Kelly (1981) FLC 91-007
Millar & Millar (1983) FLC 91-326
Molier & VanWyk (No 2) (1981) FLC 91-001
Sanders & Sanders (1976) FLC 90-078
JRN v IEG (1998) 72 ALJR 1329
K & B (2006) FLC 93-288
Lorreck v Watts [2013] FCCA 39
| APPLICANT: | Ms Thornton |
| RESPONDENT: | Mr Thornton |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Nicola Davies |
| FILE NUMBER: | BRC | 8946 | of | 2012 |
| DATE DELIVERED: | 24 April 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 24 April 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Merkin |
| SOLICITOR FOR THE APPLICANT: | Wiltshire Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr Jordan |
| SOLICITOR FOR THE RESPONDENT: | Simonidis Steel Lawyers |
| SOLICITOR FOR THE CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
it is ordered until further order that:
Subject to the satisfaction of the condition in paragraph 2 of these orders, the final orders made by the Honourable Justice Murphy on 23 February 2015 are stayed until the hearing of the Applicant Mother’s appeal by the Full Court.
Within seven (7) days of today’s date the Applicant Mother is to file and serve an application in the appeal seeking an expedited hearing of the appeal.
it is ordered that:
Each party’s costs of and incidental to the Applicant Mother’s Application in a
Case filed on 13 April 2015 be reserved.
notation:
This stay of the orders made on 23 February 2015 has been granted on the basis of there being a reasonable prospect of the appeal receiving expedition such that it can be heard in the sittings of the Full Court commencing on 3 August 2015.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Thornton & Thornton (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 8946 of 2012
| Ms Thornton |
Applicant
And
| Mr Thornton |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
On 23 February 2015, Murphy J made final orders and delivered reasons for judgment in parenting proceedings concerning two children, G born in 2005 and C born in 1999.
Those orders provided for the children to live with the mother and to spend time with the father on a gradually increasing basis, culminating in time from after school Fridays until before school on Mondays in alternate weeks and Thursday overnight in the other weeks, plus half school holiday time and other special occasion time.
Central issues in the trial proceedings were whether the girls had been victims of sexual abuse perpetrated by the father and whether they would be at an unacceptable risk of such abuse if in the unsupervised care of the father in the future.
Murphy J concluded on these issues, and I refer in particular to [358] of his Honour’s reasons, that the evidence did not support findings of sexual abuse or improper conduct by the father, and that there was no unacceptable risk to the children from living with or spending time with the father.
Because of the allegations, it seems from about some time in 2012 and until today, the children’s time with the father has been supervised and limited by that feature.
By a notice of appeal filed on 23 March 2015, the mother appeals against some of the orders made by Murphy J, and of particular relevance, the orders his Honour made as to time the children were to spend with the father and that it be on an unsupervised basis.
It is apparent from the mother’s grounds of appeal, about which I will say something more shortly, that she challenges Murphy J’s conclusions on those central issues of abuse and risk and thus challenges the orders made for the children’s time with the father. The order she seeks on the appeal is that there be a rehearing of the proceedings.
The application I am dealing with is the mother’s application filed on 13 April 2015 for a stay of all the orders made by Murphy J pending the hearing of the appeal.
Rule 22.11 of the Family Law Rules 2004 (Cth) (“the Rules”) provides, firstly, that the filing of a notice of appeal does not stay the operation or enforcement of the order appealed from unless otherwise provided by a legislative provision. Secondly, that if an appeal has been started a party may apply for an order staying the operation or enforcement of all or part of the order to which the appeal relates. And thirdly, that the application must be filed in the registry in which the order was made and be heard by the judge who made the order under appeal.
Rule 1.13 of the Rules permits an application for a stay to be listed before another judicial officer if the judicial officer who made the order under appeal is unavailable, and that is so in this case.
It is trite that conditions can be imposed on the grant of a stay. I raised with the parties at the outset of the hearing of this application, that the Court’s communication with the appeals registrar revealed that it was possible that, if this appeal were given some expedition, it could be heard in the sittings of the Full Court set down to commence on 3 August this year, about three months away. The Court made those inquiries for the obvious reason that the likely delay in determination or disposition of the appeal is a relevant consideration in the grant of a stay.
The condition identified would be that within seven days the mother file and serve an application in an appeal seeking expedition of the hearing of the appeal, a condition which is not opposed by the mother, and I would impose in any event, and is not the subject of any contest from the father or the Independent Children’s Lawyer (“the ICL”). I interpolate here that it is plainly in the interests of all concerned in this case, but most particularly the children the subject of these proceedings, that these proceedings which have now been on foot for a long time be brought to an end as soon as possible.
The principles for granting a stay are well settled[1] and include the following, first, that a stay is not granted as a matter of course simply because the orders are the subject of an appeal, and of course, r 22.11(1) that I have referred to states that.
[1] See Clemett & Clemett (1981) FLC 91-013 at 76, 175-6; Millar & Millar (1983) FLC 91-326; Carlin & Carlin (1977) FLC 90-320; Kelly & Kelly (1981) FLC 91-007; Molier & Van Wyk (No 2) (1981) FLC 91-001; FCT v Myer Emporium Ltd (1986) 160 CLR 220; Hock Hing v Foster (No 1) (1989) 13 Fam LR 79; Alexander v Cambridge Credit Corp (Receivers Appointed) (1985) 2 NSWLR 685; Lorreck v Watts [2013] FCCA 39 at [9]; JRN v IEG (1998) 72 ALJR 1329; EJK v TSL(No 2) (2006) 35 Fam LR 590; K & B (2006) FLC 93-288; Aldridge & Keaton (2009) FLC 93-421; CSN v JBN (1998) FLC 92-833; and Sanders & Sanders (1976) FLC 90-078.
The applicant bears the onus of establishing a proper basis for the grant of a stay. Relevant considerations so far as the discretion to order a stay include, firstly, whether refusing the stay would render the appeal nugatory. Secondly, the entitlement of the other party to what is sometimes called “… the fruits of the judgment at first instance …” and related to that, any hardship caused by the granting or refusing of the stay and, in association with that, a presumption as to the correctness of the decision under appeal is made. Next, the merits of the appeal. The authorities reflect some differences in terms of what that term actually means, as it seems to me.
On balance, it seems to me that a judge in my position assessing the merits of the appeal is not actually analysing the correctness or otherwise of the trial judge’s decision, but rather is considering whether the appeal appears to be based on substantial grounds, rather than grounds which might render the conclusion that there exists a lack of bona fides or a mere delaying tactic being employed.
Another consideration is any delay in seeking the stay, which would not seem to apply here and finally, the likely delay in the disposition of the appeal.
It seems on the authorities that some particular considerations are relevant in children’s cases. In JRN v IEG (1998) 72 ALJR 1329 Kirby J in the High Court, after discussing the principles governing the determination of stays in that Court, said this:
… in [Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460 at 464] I drew attention … to the fact that different considerations may apply in respect of the operation of the criminal law or in respect of laws designed to protect the public. In my opinion, some adaption of the rules stated in the cases governing stays in this court must also occur in cases which affect significantly third parties who are not parties before the court, and in particular, children whose welfare must always be in the mind of a court in making an order affecting their interests. …
Kirby J’s statement that children’s interests “… must always be in the mind of a Court …” is not the same thing as saying that children’s interests are the paramount consideration in the determination.
Since amendments to the Family Law Act 1975 (Cth) (“the Act”) in 1995 an order granting a stay is not a parenting order within the meaning of s 60CA. None of this is to say that children’s interests are not of weight, and indeed of great weight, or indeed might be of determinative significance in a given case. In other words, in a particular case whether or not the children’s best interests is the paramount consideration or not may be a distinction without much of a difference.
The focus of best interests in this context is in part upon the desirability of avoiding changes to the children’s arrangements pending the hearing of an appeal. In my judgment, there is a risk that refusing the stay here might render the appeal nugatory in the sense of the children moving to unsupervised time when that is the gravamen of the mother’s case in the proceedings and which she seeks to agitate on the appeal.
Considerations such as the entitlement of the other party to the “…fruits of the judgment…” as earlier referred to, are obviously impacted upon in a parenting case by reason of the statement referred to by Kirby J in that it is not just the father’s interests I must consider here, but the interests of the children or third parties as Kirby J refers to them as, whose interests are fundamentally affected by the proceedings.
In terms of the merits of this appeal, I have had some robust exchanges with Ms Merkin of counsel, who drew the grounds so far as some of them are concerned. I do not resile from the position that some of the grounds of appeal are unintelligible and not proper grounds and more particularly, the ones I referred to in the course of argument are, as it seems to me, mischievous. That noted, holistically viewed, I am persuaded that there are matters or at least some substantial grounds raised in the appeal which preclude a conclusion now that the appeal is devoid of any merit.
Focusing then on the interests of these children, and in the context of the desirability of avoiding changes for them pending the hearing of the appeal, I am mindful of the trial judge’s findings in this respect as expressed in his reasons commencing at [388] of the reasons. His Honour, having found that there was no unacceptable risk of abuse and that the children should move to unsupervised time with the father, nevertheless imposed supervision in the context of the ICL explaining the orders to the children and that there not be a move to unsupervised time until that had occurred. At [388] Murphy J said this:
I consider the arrangements for the children to spend time with their father as extensive as what he suggests would be a significant change to their erstwhile circumstances and I consider that any such change may well have a detrimental effect on them. These children have been exposed to almost three years of post-separation conflict between their parents and, as I have said many times in these reasons, are caught in the cross-fire of a very serious set of allegations and counter-allegations.
Continuing at [389] his Honour said:
Consistent with my earlier findings, I do not doubt that the children have been acutely aware of these proceedings and also aware that they are the focus of them. I also have no doubt that they are acutely aware that they are the focus of competing claims and counter-claims by their parents, each of whom they love dearly. I consider that orders which minimise the amount of change to be in their best interests. These children need to, as it were, find their feet, with as much support and as little disruption as possible.
His Honour continued at [394] and [395] of the reasons as follows:
In light of my findings as to the children’s knowledge of these proceedings and what they have been exposed to within them, I consider it appropriate that a person independent of the parents explain the orders in
child-appropriate language. I will require the ICL to explain these orders to the children utilising such professional assistance as she might consider appropriate.
In [395]:
I have considered whether some time immediately consequent upon the orders should be supervised, specifically for the purpose of the children adjusting to their new circumstances. However, in light of statements made by the children, as manifest in the evidence of [Ms A], I am satisfied that they are not only able to sustain that time without supervision but that they are looking forward to it. However, I consider time should remain supervised until the ICL explains the orders as I will direct which, in turn, I will direct should take place with all possible expedition.
On the evidence before me, between delivery of the orders and reasons and the filing by the mother of her notice of appeal, the explanation proposed from the ICL to the children has not in fact occurred. There are various complaints agitated about that, but for present purposes all I need to observe is that the explanation has not occurred, and there has not been a progression to unsupervised or further time. In terms of desirability of avoiding changes to the children’s arrangements then, the difficulty in not granting a stay of the orders might be that the arrangements change for the children now, only for those arrangements to be revisited if the appeal enjoys any success.
Whilst there is authority for the proposition that status quo is not necessarily an inflexible requirement or presumption in every case, given his Honour’s own reasons as referred to, particularly in a case involving allegations of the nature that are involved in this case, it seems to me that stability of circumstances assumes some importance given that the appeal has prospects of being heard in only three months hence. That is a fundamental factor.
For these reasons I make the orders set out at the commencement of them.
I will also place a notation on the order to the effect that the stay has been granted on the basis of there being a reasonable prospect of the appeal receiving expedition such that it can be heard in the sittings commencing 3 August 2015. By way of explanation, it may well be the order for a stay might need to be revisited in the event expedition is not granted, or at least there may need to be some further application about interim arrangements short of revisiting of any stay.
The effect of these orders will be that the prevailing orders made in December 2013 will apply to the interim arrangements over the next three months, assuming the appeal is heard in the sittings of 3 August 2015. I also note in passing that by staying the operation of Murphy J’s orders that would include the order in relation to Mr E’s undertaking. That order discharged his obligation under that undertaking, but obviously by staying the operation of that order, that undertaking is effectively reimposed by the grant of the stay sought.
I propose to reserve the costs of each party of this application.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 24 April 2015.
Associate:
Date: 24 April 2015
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