Walter and Walter
[2012] FMCAfam 762
•27 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WALTER & WALTER | [2012] FMCAfam 762 |
| FAMILY LAW – Application for stay pending appeal – appeal to the Full Court – final parenting orders – general principles considered – stay refused. |
| Family Law Act 1975 (Cth), s.117 |
| Aldridge v Keaton (Stay Appeal) (2009) FamCAFC 106 Clemett and Clemett (1981) FLC 91-013 EJK v TSL (No.2) [2006] FamCA 806 House v R (1936) 55 CLR 499 |
| Applicant: | MS WALTER |
| Respondent: | MR WALTER |
| File Number: | MLC 6449 of 2010 |
| Judgment of: | Hartnett FM |
| Hearing date: | 26 July 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 27 July 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Wilson |
| Solicitors for the Applicant: | Carew Counsel |
| Counsel for the Respondent: | Mr Weil |
| Solicitors for the Respondent: | Kennedy Partners |
THE COURT ORDERS BY CONSENT THAT:
Paragraphs 17 and 18 of the Orders made by Federal Magistrate Hartnett on 6 June 2012 be stayed pending determination of the Appeal Number SOA 45 of 2012 filed 14 June 2012.
THE COURT ORDERS THAT:
The Application for Stay filed 21 June 2012 is dismissed save for Orders made by consent this day.
The Wife pay the Husband’s costs of the stay application.
A costs certificate be granted to each of the Husband and the Wife pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) with respect to the costs of and incidental to the parties appearance before Federal Magistrate Burchardt on 17 July 2012.
IT IS REQUESTED THAT:
The Independent Children’s Lawyer forthwith and no later than 5.00pm on 27 July 2012 explain the orders made on 6 June 2012 to the children X born (omitted) 2000, Y born (omitted) 2002 and Z born (omitted) 2004in accordance with order 15 of those orders.
AND THE COURT NOTES BY CONSENT THAT:
The parties have agreed that the fortnightly cycle in the Orders made 6 June 2012 will commence this day with this week being what is described in Order 4(a)(i) as “Week 1” and further that the Wife will collect the children from the Husband’s residence today at 6.00pm and spend time with them until commencement of school on Monday.
IT IS NOTED that publication of this judgment under the pseudonym Walter & Walter is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 6449 of 2010
| MS WALTER |
Applicant
And
| MR WALTER |
Respondent
REASONS FOR JUDGMENT
The applicant appellant wife seeks, in application filed 21 June 2012, orders:
“1. That paragraphs 3, 4a, 10, 17 and 18 of the orders made by Federal Magistrate Hartnett on 6 June 2012 be stayed pending determination of the Appeal No. SOA 45 of 2012 filed 14 June 2012.
2. Such further or other orders as this Honourable Court deems fit.”
In support of that application the applicant wife relies upon affidavits sworn by her on 19 June 2012 and 17 July 2012. On the hearing of the matter, her Counsel also filed on her behalf an outline of submissions. There was also tendered in evidence an email from the Regional Appeal Registrar of the Southern Appeal Registry, Ms M, as to a possible hearing date for the appeal, and communication dated 11 July 2012 to the parties from Mr M, the Independent Children’s Lawyer in the proceedings, who was otherwise absent this day. His communication advised that he would not be participating in the stay application proceedings or the appeal proceedings due to a determination by Victoria Legal Aid to not fund such representation at those hearings.
The respondent husband filed a response on 17 July 2012 seeking the following orders:
“1. That the wife’s application filed 21 June 2012 be dismissed.
2. That the wife pay the husband’s costs of and incidental to the application.
3. That the Court direct that Mr M, Independent Children’s Lawyer meet with the children within 24 hours and explain to them the orders made 6 June 2012.
4. Such further and other orders as the Court deems appropriate.”
In support of that response the respondent husband filed an affidavit sworn by him on 13 July 2012. Whilst he opposed the stay of the parenting orders made 6 June 2012, he swore in paragraph 3 of that affidavit:
“I do not oppose the stay, of the property orders, on the basis that the monies representing the proceeds of sale, remain invested earning interest, pending the hearing of the appeal.”
Accordingly, the parties entered into consent orders with respect to that part of the wife’s application.
The wife’s notice of appeal filed 14 June 2012 seeks (with respect to parenting orders) that the three children of the marriage:
a)X born (omitted) 2000;
b)Y born (omitted) 2002; and
c)Z born (omitted) 2004
live with her, and spend substantial and significant time with their father. The orders made 6 June 2012 provide for the children to live with their father and spend substantial and significant time with their mother.
The grounds of appeal, as contained in the applicant wife’s notice of appeal filed 14 June 2012 and as they relate to the parenting orders made, are as follows:
“1. The Federal Magistrate failed to consider, or properly consider, the final submissions of the Appellant in relation to parenting and property matters.
2. The Federal Magistrate failed to consider, or properly consider, the final submissions of the Independent Children’s Representative in relation to the parenting matters.
3. The Federal Magistrate’s finding that the respondent did not attempt to influence the children X and Y to express a view favourable to the husband’s case was against the weight of and contrary to the evidence.
4. The Federal Magistrate erred in the exercise of her discretion in that she paced undue emphasis on her finding as to past primary care of the children when considering their future welfare, and insufficient weight on other relevant factors, causing the exercise of her discretion to miscarry.
5. The Federal Magistrate made findings against and contrary to the weight of evidence, which caused the exercise of her discretion to miscarry.
6. The Federal Magistrate’s finding that the respondent had not deliberately promoted a negative attitude by the children towards the appellant was against and contrary to the weight of evidence.
7. The Federal Magistrate’s finding that the promotion of a negative attitude with the children by the respondent towards the appellant was an isolated incident was contrary to the evidence.
8. The Federal Magistrate’s finding that the respondent had not encouraged X to make unfounded allegations against the appellant was against and contrary to the evidence.
9. The Federal Magistrate’s failed to consider at all the cause or reason why X made unfounded allegations of physical abuse against the appellant, and the relevance of that fact when assessing what orders would best promote the welfare of the children.
10. The judgment of the Federal Magistrate contains language and comment, when referring to the appellant, which causes an apprehension of, or is demonstrative of, bias against the appellant.
11. The judgment of the Federal Magistrate contains comment about the evidence of Ms D and Ms P which causes an apprehension of, or is demonstrative of, bias against the appellant.
12. The reasons given by the Federal Magistrate for her rejection of the recommendations of Ms D are contrary to and against the weight of evidence, including the evidence of Ms D’s own unchallenged observations.
13. The Federal Magistrate erred in her finding that the evidence of Ms H was of no assistance to her, when the evidence was directly relevant to the respondent’s insight, having been placed before the Court by him, and relevant to the attitude and behaviour of his family towards the appellant.
14. The Federal Magistrate’s suggestion during the trial that the affidavit of Ms H be withdrawn by the respondent, and her dismissal of, and failure to consider, the relevance of Ms H’s demeanor and the content of her evidence, causes an apprehension of bias, or is demonstrative of, bias against the appellant.
15. The Federal Magistrate’s findings as to credit against the appellant were against the weight of the evidence.
16. The Federal Magistrate’s findings as to credit in favour of the respondent were against the weight of the evidence.”
The law
The applicable principles relating to a stay pending appeal application are as set out in Aldridge v Keaton (Stay Appeal) (2009) FamCAFC 106. There, the Full Court of the Family Court of Australia (‘the Full Court’) said at paragraphs 17 and 18, the following:
“17. This is an appeal from a discretionary judgment. There are well established principles on the limits on interference by an appellate court with such a judgment (see House v R (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513 ; (1979) FLC 90-716).
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 (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Ltd [No (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). 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 nugatory 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; and
* the best interests of the child the subject of the proceedings are a significant consideration.”
The Court was also referred to the relevant authority of Clemett and Clemett (1981) FLC 91-013 (Full Court) Nygh J (with whom the other members of the Court agreed) wherein he said (at page 76,175):
“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. In this case we are satisfied that the appellant is appealing seriously on the merits of the case, than an appeal can be (and has in fact been) expedited within a reasonable time and that the child is properly looked after by the father. There is no indication that his Honour gave any consideration to those matters. If his Honour did, we are of the view he did not give sufficient consideration to them. For those reasons, we are of the view that his Honour exercised his discretion wrongly and consequently that the appeal should be upheld.”
As correctly noted by the wife’s Counsel, the above was quoted by the Full Court in EJK v TSL (No 2) [2006] FamCA 806 at paragraph 16 and in paragraph 17, the Court went on to say:
“[17] Although we note that this decision pre-dates the Family Law Reform Act 1995 (Cth) when the whole of Pt VII of the Family Law Act 1975 (Cth) (the Act) was subject to "the best interests test", we accept the principles espoused are relevant to this application, and the child's best interests, even if not the paramount consideration, on the facts of this case are a significant consideration. The importance of the consequences for a child of granting or refusing a stay are well recognised. In JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332 Kirby J said:
In my opinion, some adaptation 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.”
Consideration
In considering the competing applications before the Court, I note that the Court is engaged in an exercise of discretion. Since the making of the orders, and in the face of the wife’s statement of intent to appeal the orders and subsequent filing of a notice of appeal, the Independent Children’s Lawyer has not acted pursuant to order number 15 of the orders, the wife deposing to the Independent Children’s Lawyer agreeing not to explain the final orders to the children pending the outcome of her stay application. The husband has not sought by application to enforce the orders. This has produced a ‘stay’ of sorts despite the mere filing of an appeal being insufficient to grant such a stay. The effect has been that in the intervening period since judgment, the three children have continued to reside in a shared care arrangement between their parents. The Court turns now to a consideration of those principles such as they are relevant to this stay application as set out in Aldridge v Keaton (Stay Appeal) (2009) FamCAFC 106, noting the list of principles stated therein are not exhaustive and that the onus for the stay is on the applicant.
The bona fides of the appeal
The Court is satisfied that the applicant wife is bona fide in pursuing her rights to appeal the decision in this matter.
Whether there is a risk that the appeal may be rendered nugatory if a stay is not granted
The Court takes into account the observations of the Full Court in Aldridge v Keaton (Stay Appeal) (2009) FamCAFC 106, that this is a substantial factor in determining whether it is appropriate to grant a stay, and determines there is no risk to the wife’s appeal being rendered nugatory in the event that a stay is not granted. Indeed, it is not a ground pushed by the applicant. At the time of trial the Court determined the best interests of the children were advanced by them residing primarily with their father. The mother takes issue with that finding and should her appeal be successful then the children will reside more predominately with her. It will not be impossible nor impracticable to achieve such an outcome as a consequence of the stay application being refused.
The grounds of appeal
Ultimately, this is a matter for the Full Court but some preliminary assessment of the required strengths of the appeal is required here. Many of the grounds involve conflicting assessments of matters of weight in what is a discretionary judgment. In that regard, the Court refers to House v R (1936) 55 CLR 499:
“The constant emphasis of the cases is that before reversal an appellate court must be well-satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well-established that it is never enough that an appellate court left to itself would have arrived at a different conclusion. When no error of law or mistake of fact is present to arrive at a different conclusion which does not, of itself, justify reversal can be due to little else but a difference of view as to weight. It follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which may only involve conflicting assessments of the matters of weight.”
Others are generalised grounds of appeal where it is difficult to objectively assess the merits of any such grounds. Others allege an apprehension of, or demonstration of, bias against the applicant wife. In response to that, the Court observes that its detailed reasons for judgment reported as Wright & Wright [2012] FMCAfam434 were based on findings of fact upon a consideration of the evidence before it. The Court is not obliged to follow the recommendations of the family report writer, but is obliged to address that evidence and make observations as to such evidence when not doing so. In that regard, the Court refers to in particular paragraphs 24 to 29 inclusive of its reasons for judgment. Overall, it is difficult to identify grounds of appeal which disclose significant merit on this, as I stress, preliminary assessment.
Timing of the appeal hearing
If the appeal is to be determined by a Full Court, the Appeal Registrar has an expectation that it would be listed in some seven months hereafter. If it is to be determined by a single judge, then the expectation is a listing for final hearing within three to six months. There is no application for expedition of the appeal. Allowing time then for reasons for judgment to be delivered, the time frame in which this appeal could be heard and determined could approach 12 months, but might be at best a further six months. If the matter is remitted for re-trial there will be a further period of many months for a further hearing and determination, even if the retrial is expedited. If a stay were to be granted a significant period of time would pass where the children would continue in the same care arrangements as before the making of the orders, in circumstances where this Court was satisfied at trial that the children’s best interests were served by them living with their father. Furthermore, all parties agreed that the evidence disclosed that the current living arrangements for the children at trial and leading up to trial were not promoting their best interest and were adverse to an advancement of such interests.
Changes in the children’s circumstances
At the time of trial, the Court determined the children should no longer be in the equal shared care arrangement which they were then in and have continued to be. This was in part because of the expressions of the two elder girls’ wishes and because of the conceded and ongoing highly dysfunctional relationship between the parties which has presented difficulties for the children. The parties themselves gave evidence that such living arrangement did not benefit the children. The children are getting older and the expression of their wishes is important. Since the trial, the Department of Human Services have been involved with the family on an apparent reporting by Y’s school in respect of an allegation made by Y that her mother threw an iPad at her. The parents’ dysfunctional relationship continues, with the wife continuing to assert the husband undermines her attempts to discipline Y and the husband observing the wife has difficulty in managing the children. The husband’s affidavit sworn 13 July 2012 annexes further email exchanges between the parties where the wife concedes she referred to the husband as a ‘fat, useless prick’ impliedly in front of Z. She was angered by the husband’s behaviour. There seems little respite. The children’s best interest dictate a change in their current circumstances at this time and if there is to be a further change, perhaps some 6 to 12 months or more from now, then that should not be necessarily difficult for the children to accommodate as the present orders provide for them to spend substantial and significant time spend with their mother. It is clear from the reasons for judgment that this Court’s view was that the children are more appropriately in their father’s care, and the circumstances that have arisen since the making of the orders do not alter that view. They merely reinforce it.
Best interests of the children
This is a significant consideration and one that works against a stay of the orders. The Court set out in its reasons at paragraph 41 of the judgment, that the shared view of the parties, the Independent Children’s Lawyer, the expert witness, and that accepted by the Court was that the children’s best interests were not served by remaining for any further period of time in the shared care of their parents. The Court set out in its reasons, including in paragraph 46, why it was that the children’s best interests were served by their, without further delay, residing primarily with their father and being in a settled environment. The Court gave some weight to the views expressed by both X and Y.
Conclusion
Accordingly, in its discretion the Court determines that no stay of the parenting orders should be granted and the application of the wife be dismissed. Costs should follow the event. I note the Court is well familiar with the financial circumstances of the parties at trial and it was not suggested by either Counsel that any significant change in the parties’ financial circumstances has occurred in the interim. I have considered those matters pursuant to s.117 of the Family Law Act 1975 (Cth) as I am required to do and note the application is being dismissed.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Date: 27 July 2012
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