Webb & Simpson (No 3)
[2022] FedCFamC1F 891
Federal Circuit and Family Court of Australia
(DIVISION 1)
Webb & Simpson (No 3) [2022] FedCFamC1F 891
File number(s): PAC 769 of 2017 Judgment of: ALDRIDGE J Date of judgment: 11 November 2022 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Where the mother seeks a stay of proceedings pending the appeal – Where it is in the best interests of the child for the current parenting arrangement to continue – Where the mother sought the issue of a number of subpoenas in support of her stay application – Application dismissed – Where the mother was refused leave to make an oral application for the Independent Children’s Lawyer to be discharged. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Carriel & Lendrum (2015) FLC 93-640
CDJ v VAJ (1998) 197 CLR 172
Rice and Asplund (1979) FLC 90-725
SPS and PLS (2008) FLC 93-363
Division: Division 1 First Instance Number of paragraphs: 16 Date of hearing: 11 November 2022 Place: Sydney The Applicant: Litigant in person The Respondent: Litigant in person Solicitor for the Independent Children’s Lawyer: Kathryn Renshall Lawyers Pty Ltd ORDERS
PAC 769 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS WEBB
Applicant
AND: MR SIMPSON
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
ALDRIDGE J
DATE OF ORDER:
11 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The applicant’s application for the issue of subpoenas is rejected.
2.The Amended Application in a Proceeding filed on 4 November 2022 is dismissed.
3.The applicant is refused leave to make an oral application to discharge the Independent Children’s Lawyer.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Webb & Simpson (No 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:
This is an application for a stay of parenting orders made by me on 27 September 2022. Ms Webb, the applicant for the stay, filed a Notice of Appeal against those orders on 21 October 2022. The orders that I made provided for the parties’ child, X, who was born in 2008, to live with the father, who was to have sole parental responsibility for her. X was to spend time and communicate with the mother at the discretion of the father.
Those orders came about after a strongly contested hearing where the parties sought quite disparate orders. Essentially, the orders that were made were those that were proposed by the father and, ultimately, supported by the Independent Children’s Lawyer (“the ICL”). For her part, the mother sought orders that X immediately come to live with her and that she have sole parental responsibility for her. She also sought an order that X spend no time at all with the father. The mother’s proposed orders garnered no support from the single expert child psychiatrist who gave evidence in the case and were not supported by the ICL.
The single expert thought that there were two competing issues. She thought that X would benefit from spending time with her mother, but if that was to occur, that would require some gentle reintroduction and the involvement of an independent therapist. The concern was the effect that the approach to that therapy might have on X’s wellbeing. It might be embraced by her or cause her further difficulties and, ultimately, the expert opined that the father was in as good a position as anyone to make that decision. Notwithstanding that evidence, that approach was not supported by the mother, and she continued to press for the orders that I described.
That was unfortunate because X had clearly expressed a view that she would not mind spending more time with her mother. In support of her application, the mother has sworn an affidavit on which I have relied, and she has also made submissions this morning, much of which consisted of informing me of things that had occurred since she swore her affidavit. As that affidavit makes clear, the mother has sent some text messages and emails to the father about speaking to X, but unfortunately, has not received a response other than a letter from his solicitors, saying it was a matter for the father which, of course, is just to reiterate the effect of the orders. Unfortunately, the difficulties with communication between the parties seem to continue.
In any event, the mother tells me that she has been to see the child’s therapist without the consent or knowledge of the father, and that the therapist tells her that it would be beneficial for her and X to spend time together but that would need a gentle introduction with the assistance of a therapist, entirely echoing the evidence of the single expert given in the proceedings. The mother now wishes to take up that opportunity and seeks a stay of the proceedings because she is working on the hypothesis that the father will not agree to such a course.
If the orders are stayed, as she seeks, the parenting orders that were made on 5 February 2018, and varied on 26 April 2018 and 1 July 2019, would come back into operation. Those orders would see X continuing to live with the father and spend limited time at a contact centre. As I explained in the judgment, time at a contact centre was neither in X’s interests, nor the mother’s interests. However, the significance is that there would be no order except for parental responsibility which would mean that the mother and father, between them, would share the parental responsibility for X which the mother says she could then exercise to take X to therapy.
Now, had that approach been taken at the hearing, I accept that it is quite possible that different orders may have been made, they may not, but this is not the opportunity for the Court to re-exercise the jurisdiction as to what parenting orders are now in X’s best interests. At the very least, a consideration would need to be undertaken as to whether or not there had been a change in circumstances sufficient to justify reconsideration of the parenting orders, applying the principles set out in Rice and Asplund (1979) FLC 90-725 and more fully explained in many other cases, including SPS and PLS (2008) FLC 93-363 and Carriel & Lendrum (2015) FLC 93-640. That course is not invoked by the filing of an application to stay orders pending an appeal.
The second difficulty is that it is apparent from the communication, or lack of it, referred to in the mother’s affidavit and in the proceedings continues, and it is apparent from what she has said this morning that her attitude towards the father remains unchanged. Even if I was of the view that it was open to me in the best interests of X, that is, by making a further parenting order, to make orders that would see the parties share parental responsibility, I am not satisfied on the evidence that such orders would be in X’s best interests. Almost certainly, they would lead to a new round of litigation. I am far from satisfied that there has been a change in circumstances sufficient to warrant reconsideration of the parenting orders in any event.
I have given the above reasons not because they deal directly with the stay application but because they deal with the submissions that the mother put to me this morning.
The principles relating to a stay application have been conveniently set out in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 at [18]. Whilst an applicant for a stay does not need to demonstrate “exceptional” or “special” circumstances, the applicant must identify a basis for the stay, bearing in mind that a person who has obtained a judgment is entitled to its benefit and it is presumed to be correct until the Court on appeal determines otherwise. The mere filing of an application is insufficient to grant a stay.
One of the significant factors that may be taken into account is whether the appeal may be rendered nugatory if the stay is not granted. As I have already identified, the only significant difference that would occur in X’s life and the parties’ obligations towards her if the stay was granted is that there would be shared parental responsibility. In my view, essentially, for the reasons given earlier and the reasons set out in my original judgment, that is a most undesirable course and speaks against the stay. The court is required to make a preliminary assessment on the strength of the proposed appeal. It is always invidious for a trial judge to assess the prospects of appeal against their own decision.
The grounds of appeal are in broad terms and are very generic. As explained by the mother in her affidavit, the appeal seems to focus on re-running the case by reference to evidence that was not called at the hearing but is hoped to be called at the appeal, or where different inferences are sought. Such appeals generally face difficulty, partly because in CDJ v VAJ (1998) 197 CLR 172, the High Court pointed out that, generally speaking, evidence that was available to be called at the hearing but was not, should not be admitted on appeal. However, in saying that, I will work on the basis that the appeal has arguable prospects of success and that neither supports nor derogates from the grant of the stay. Assuming both the directions of the appeal judicial registrar and the requirements of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) are met promptly by the mother, the appeal will come on in a fairly short time.
Given that X has lived with her father since February 2018, the best interests of the child are served, in my view, by that continuing. It follows that I am not persuaded to grant a stay of the proceedings.
The mother has sought, in support of her stay application and the appeal, the issue of a number of subpoenas addressed to the Australian Federal Police, Ms P, who is the child’s therapist, Ms N, another therapist, the Department of Justice and New South Wales Police. Those affidavits seek material over an undated period. There is no suggestion in the evidence at all that evidence had occurred since the hearing that is sought to be picked by those subpoenas.
I do not see that they have any particular relevance to the stay application because I have worked on the basis that the appeal has reasonable or arguable prospects of success, and the relevance of this material can only be that if obtained and if admitted on appeal, that would advance the prospects of success on the appeal. I do not consider the matter to be relevant to the stay application. If such subpoenas are to be issued in support of the appeal, that is a matter for the exercise of appellate jurisdiction and will require applications to be made in the appeal.
An oral application has been made by the mother to discharge the ICL. There is no basis for doing that on a stay application and I would not deal with it as an oral application in any event.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 25 November 2022
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