Tranh and Long

[2008] FamCA 922

FAMILY COURT OF AUSTRALIA

TRANH & LONG [2008] FamCA 922

FAMILY LAW – PRACTICE AND PROCEDURE – Stay– Application by father for stay of parenting orders pending appeal – Unlikely that the husband's appeal will succeed or that decision would be changed – Refusal of stay would not render nugatory the fruits of a successful appeal – Stay not granted

Family Law Act 1975 (Cth)

APPLICANT: Mr Tranh

RESPONDENT: Ms Long

FILE NUMBER: PAF 2203 of 1994

DATE DELIVERED: 21 October 2008

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Coleman J

HEARING DATE: 21 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Applicant in Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the application for a stay of the orders made on 13 August 2008 be refused.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAF 2203 of 1994

MR TRANH

Applicant

And

MS LONG

Respondent

REASONS FOR JUDGMENT

1. This is an application to stay orders made on the 13th of August 2008. On that occasion, for reasons then delivered, the Court declined to make any order providing for time to be spent by a child who is now fifteen years of age with his father. To that effect, orders which had been in place for some years, but it was common ground had not been implemented or effected for some years, were discharged.

2. The decision of 13 August 2008 also included orders permitting the mother, as she had done in the past, to remove the child from the jurisdiction for periods of time and ordered that the father be declared a vexatious litigant pursuant to s 118 of the Act. As is his right the father appealed against the Court's decision.

3. The father’s Notice of Appeal does not disclose an identifiable ground of appeal but there seems to be some complaint that because the father, who changed the nature of the interpretation he said he required from Cantonese to Mandarin or Mandarin to Cantonese, but clearly as the transcript of the trial would confirm was more than able to acquit himself at least linguistically in English, was denied an interpreter on the day judgment was delivered was denied natural justice. As subsequently emerged and has been confirmed again this morning, quite apart from the father's absence of difficulty understanding what was happening in the English language during the trial, he for some time has been attending a course at TAFE, which is conducted in English. He attends classes conducted in English and passes his exams in English. He wrote his Notice of Appeal in English. He wrote his application for stay in English. He wrote his affidavit in support. With respect to the father, the complaint about being denied an interpreter when judgment was delivered, by which time the case for all practical purposes was over in any event, is disingenuous.

4. Perhaps more significantly, and this applies to the four grounds which appear in the Notice of Appeal, even if each and every one of those grounds was made out, or indeed if any of them was made out, given the uncontradicted evidence that the child the subject of the proceedings is fifteen years of age, has not seen his father at his choice for some years and wants nothing to do with him, it is inconceivable that an Appeal Court would change the decision of 13 August 2008, whatever view it took of the way that decision was reached. Stroud v SGIO decision of the High Court is relevant in this context.

5. Returning to the grounds of appeal, it seems to be complained that because five days was set for the trial and the trial concluded in three, the father was somehow disadvantaged. As would be apparent from the transcript, the great bulk of the trial time was taken up by the father in the course of generally inept attempts to cross-examine various witnesses. The father had a time constraint imposed on his cross-examination of the mother, from memory a day, certainly a significant time. A reading of his cross-examination of the mother would reveal that if the father had been allowed to cross-examine the mother for five days nothing could or would have changed. The same is true of any other witness or witnesses he cross-examined.

6. The father had the opportunity to respond to the ICL’s submission. He did not make extensive submissions. He knew at all times what the position of the children's lawyer was, namely, that there be no contact or time spent by the child's son, with the father, unless and on such conditions as the child wished.

7. The father complains about this Court’s treatment of the transcript of earlier evidence. The Court read the evidence before Waddy J. With respect to Waddy J, whatever his Honour might have concluded had he finished the case does not bind this Court. It was a new trial. The evidence before Waddy J, which was prejudicial to the father or potentially prejudicial, was disregarded by this Court out of an abundance of caution to be fair to the father.

8. The principles which govern the granting of a stay establish that the granting of the stay is discretionary. The primary consideration is whether the refusal of the stay would render nugatory the fruits of a successful appeal. The father has not attempted, no doubt out of ignorance that such was the principle, to address that topic. No matter what his knowledge of the law, he could not successfully address the requirement that a refusal of a stay would render nugatory the fruits of a successful appeal.

9. Quite simply, at a time when the orders were on foot the father was not seeing the son. To stay the orders of 13 August 2008 and revive the earlier orders would not mean that the father would see his son. No Court in the land would enforce the earlier orders were they to be revived in the circumstances as they exist today. The father thus will continue not to see his son until the appeal is heard, whether or not the stay is granted. Refusing a stay therefore cannot render nugatory the fruits of a successful appeal. What granting a stay could do, and it can reasonably be inferred would be likely to do however, would be to enable the father to commence enforcement applications with respect to the earlier orders, notwithstanding that such applications would be doomed to fail. Historically that has not been a reason why the father refrains from taking action. That would be mischievous and the Court would be aiding and abetting an abuse of its processes. The application for a stay must be refused. No basis for granting it appears in the affidavit in support. Nothing advanced by the father before the Court this morning advances his claim. In essence all he has put to the Court this morning is repeated complaints about what he says should have happened but did not at the trial.

I certify that the preceding eight (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman

Associate: 

Date:  30 October 2008