WEMPLE & DAUTRY
[2014] FCCA 401
•19 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WEMPLE & DAUTRY | [2014] FCCA 401 |
| Catchwords: FAMILY LAW – Stay application – consideration of Mother’s bona fides in light of email threat to Father to withhold child spending time with him unless he agreed to Mother’s demands – one ground of the stay application relied upon ‘unknown evidence’ which may be found (‘unknown unknowns’) – allegations by Mother of possible ‘hacking’ of her electronic communications by the Father (a serving Australian Federal Police officer) – warning of the gravity of such allegations. |
| Legislation: Family Law Act 1975 |
| Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685 K & B (2006) FLC 93-288 |
| Applicant: | MR WEMPLE |
| Respondent: | MS DAUTRY |
| File Number: | CAC 1472 of 2013 |
| Judgment of: | Judge Neville |
| Hearing date: | 17 February 2014 |
| Date of Last Submission: | 18 February 2014 |
| Delivered at: | Canberra |
| Orders pronounced on: | 19 February 2014 |
| Reasons provided on: | 11 March 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Gill |
| Solicitors for the Applicant: | Farrar Gesini Dunn |
| Solicitor/Advocate for the Respondent: | Mr J Nicholl |
| Solicitors for the Respondent: | Nicholl & Co |
ORDERS
The Mother’s Application in a Case, filed 21st January 2014, seeking (among other things) a stay of the orders made by this Court on 20th December 2013 (a) regarding the school X should attend in 2014, and (b) to vary the parenting orders also made on 20th December 2013, be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Wemple & Dautry is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 1472 of 2013
| MR WEMPLE |
Applicant
And
| MS DAUTRY |
Respondent
REASONS FOR JUDGMENT
Introduction
Formally, the Applicant in the current stay application is the Respondent Mother in the substantive proceedings, which involve parenting (and school) orders in relation to 5 year old X.
Following an urgent hearing earlier in December, in the middle of the last duty week of the year (20th December 2013), I pronounced orders and delivered abbreviated reasons regarding (a) parenting arrangements and (b) in relation to the school X should attend in 2014. Detailed written reasons were subsequently provided in early February 2014.
On 17th January 2014, the Mother filed an appeal in relation to the December orders, both in relation to parenting and the order regarding X’s school.
On 21st January 2014, the Mother filed an Application in a Case in which she sought relief by way of a stay of the December 2013 orders regarding X’s school, a revision of the parenting orders earlier made, that the Father pay the Mother’s costs (even though she was then self-represented, apart from her directly-briefed Counsel at the hearing in December), and that leave be granted for the Application to be served on short notice.
The first available opportunity for the matter to be heard was, as it turned out, in the first duty week of the year (17th February 2014).
The Mother, for the first time in the proceedings, instructed solicitors. At the hearing of the stay application on Monday, 17th February, the solicitor for the Mother confirmed that he was instructed only on Friday, 14th February 2014.
For the reasons that follow, the stay application must be refused in relation to the school order of 20th December 2013, as should the application to vary the parenting orders of the same date. Orders to these effects were pronounced on 19th February 2014. At the same time, it was confirmed that written reasons would follow.
Before turning to the substantive application(s), I should note here one particular matter.
On 22nd January 2014, the Father was advised by email from the school preferred by the Mother that, as a result of the orders of December 2013 being notified to it, X had been taken off the roll of (omitted) Grammar School (“(omitted) School”). The Father notified this to the Mother by email on the same day he received it. A copy of that email chain is annexure G to the Father’s affidavit, filed 4th February 2014.
During the hearing of the stay application, the Court inquired whether, following X being ‘un-enrolled’ at (omitted) School, there was/is still a place for her at that school. The Mother’s solicitor advised that he would check, and conceded that if there was no place available it would seem to make the prosecution of the appeal (presumably at least in relation to the school matter) rather superfluous. In his own words: “I accept that if it is the case that there’s no longer a place for X here then there’s not a lot of point me standing before you saying we need a stay.”[1] The Court allowed the Mother’s solicitor to make the relevant inquiry.
[1] Transcript (17th February 2014) p.19. Hereafter “T followed by page number.”
On 18th February, the Mother’s solicitor advised the Court (by email) of the school’s response, from which it may be inferred that there is currently no place for X. The school said: “We may have a place later on this year if one of our families on posting moves on as they plan to. Obviously things can change quickly so a place may become available earlier.”
Relevant Principles in Stay Applications
It is convenient to note at the outset the principles that apply in applications of the kind currently before the Court. Such an outline was provided by the Full Court in Aldridge & Keaton (Stay Appeal).[2] At [17] – [18], the Full Court said (emphasis added):
[2] Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106. See also the more recent Full Court judgment in Anderson & Senior (Stay Appeal) (2013) FLC ¶93-556. The former judgment was in a parenting matter, the latter in a property case in which leave to appeal to the High Court was sought.
[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 The King (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 Limited [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited (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.
I emphasise the discretionary nature of the judgment under appeal particularly because, of the 10 substantive grounds of appeal, grounds 1, 2, 3, 4, 7, 8, 9 and 10 all refer specifically to either the weight given to certain evidence, and/or the Court’s exercise of discretion in the light of that evidence. Such matters are noted in detail later in these reasons.
Grounds of Appeal
Before dealing with each of the grounds set out in the Notice of Appeal filed on 17th January 2014, it is apposite to note that, in the course of the hearing of the stay application on 17th February, the solicitor for the Mother (Mr Nicholl) indicated that (a) the grounds of appeal might need some closer attention and amendment,[3] and in such circumstances, (b) he indicated that he might make an application. I understood the mooted application (noted further below) to be for an adjournment so that the grounds of appeal might be re-considered. I granted Mr Nicholl an opportunity to seek instructions [outside Court] about these matters. After a short time with his client, Mr Nicholl advised the Court that he had specific instructions not to make the application he had foreshadowed. It is as well to use Mr Nicholl’s words:[4]
…would your Honour give me five minutes to get my client’s instructions as to whether she wants me to make an application to adjourn this matter and amend the appeal grounds? Because it seems that she won’t necessarily be putting her best foot forward if the grounds that are to be put at the hearing aren’t before you to make some assessment of the weight of the argument.
… Your Honour, I’m not instructed to make that application, and in relation to the grounds, apart from the submissions I’ve already made, is that we’re now – and noting that there will be an application for new evidence at the appeal in relation to whatever material we don’t know about, and I can’t put any submissions to you.
[3] This was already ‘flagged’ in ground 11, which reads: “These Grounds of Appeal have been prepared without access to the Trial Judge’s Reasons for Judgment and it will be necessary to amend such Grounds upon these Reasons for Judgment becoming available.” I assume but do not know definitively that the Mother’s Counsel, who appeared at the hearing in December, drafted the grounds of appeal.
[4] T 13 & 14.
In the course of the stay application hearing, there was no demur to my suggestion that the grounds of appeal may properly be divided and considered as follows: (a) grounds 1-4 relate to the parenting orders of 20th December 2013; and (b) grounds 5-10 relate to the issue of the single order regarding the determination of X’s school in 2014. Notwithstanding the grouping of the grounds as indicated, I deal with each of them, in order, below.
Ground 1: That the Trial Judge was in error in the exercise of his discretion in that he failed to place sufficient weight upon the significant conflict between the parties and their inability to co-operate in the past in determining that there should be an interim order for equal shared parental responsibility.
There are three summary comments to be made in response to this ground of appeal.
First, the Court may take as a “given” that there is some degree of disagreement between the parties precisely because they have been unable to agree on parenting and schooling issues and the matter has been brought to court for resolution. However, disagreement and litigation, per se, are insufficient to rebut the presumption in s.61DA of the Family Law Act 1975 (“the Act”). That said, absent extreme circumstances (such as where there is clear evidence of abuse and/or physical contest between the parties, and/or prolonged intransigence or completely bitter conflict) disagreement and/or conflict between parties who were formerly close is both not unusual, and in many cases, a question of degree and perspective. On the facts of this matter (according to the evidence of both parties), the levels of disagreement and difficulty, in my view, are at the really quite moderate end of the spectrum. Strong “feeling” by either parent about a particular issue does not, thereby and of itself, translate into evidence sufficient to rebut the presumption in s.61DA.
In short: in the current matter, as I note below, there is little evidence from the Mother (other than simple assertion) of any serious or significant discord between the parties to warrant interference with the statutory presumption.
Secondly, as just indicated, there was insufficient evidence at the hearing in December to rebut the presumption in s.61DA of the Act. Indeed, it was a feature of the case conducted by the Mother that evidence generally was seriously lacking to support the claims or contentions she made against the Father and/or otherwise in support of her contentions. Her case was founded more on aspiration and her desire for X to attend the school of the Mother’s choosing. Declarations of intention, or statements without supporting evidence, by the Mother were unhelpful to the Court, and unhelpful to the Mother’s claims.
Thirdly, and most compellingly, the Father provided a very significant number of SMS and other messages, over a very significant period of time, which confirmed the very co-operative approach (at times almost genial and solicitous) to parenting adopted by both parents, until September 2013. Details of that message-chain are set out in the principal reasons of the Court, beginning at [79] and following. For the reasons there set out, summarised for example in [80], the volume and contemporaneity of the messages supported the Father’s case and very significantly, in my view, undermined the Mother’s.
Properly construed, the evidence pointed clearly to the parents having significant capacity to co-parent X, and had done so for a very significant period of time. Apart from day-to-day occasional hiccups regarding organisational matters in the care of both children (X and her half-brother, Z), difficulties between the parents had really only arisen when the impasse developed in relation to the choice of X’s school for 2014 and beyond. Even after September 2013, X still went on an overseas holiday with her Father.
In my view, this first ground, respectfully, has little prospect of success.
Ground 2: That the Trial Judge was in error in the exercise of his discretion in that he failed to place sufficient weight upon the evidence that the child had only spent limited time overnight with the Father since the time of separation in determining the amount of time which the child should spend with the Father upon an interim overnight basis.
Like Ground 1, and Grounds 3 and 4 dealt with below, this ground essentially ignores the detail of the Father’s evidence, both the ‘text’ (SMS) and email messages set out in the Father’s affidavits referred to in the judgment under appeal, as well as the ‘diary’ provided by the Father (also referred to in the reasons), which confirmed the frequency and duration of the times that X spent overnight time with her Father. Moreover, the Court’s orders provided for modest time for X to spend with her Father, pending the recommendations to come in the family report that was ordered on 10th December 2013. The meeting with the family consultant is now scheduled for mid-April.
Further, the Mother’s contentions about the alleged limited time X had spent overnight with her Father were unsupported in any relevant way, whereas the Father’s claims about regular (and more than single overnight) time were corroborated by the myriad of messages between the parties. Indeed, as the principal judgment sets out, at [86], from time to time the Mother asked the Father to have the children overnight (even at short notice) to enable her to have time to complete university assignments. Although the Father complained (also noted in the messages) about being a baby-sitter, he nonetheless accommodated the Mother’s requests. These were above and beyond his usual time with X (and Z).
Accepting that the ground of appeal again refers to the Court’s exercise of discretion, based upon the weight given to the evidence put before it, the Court (a) referred in detail to the evidence it relied upon, (b) noted [again] the Mother’s lack of supporting evidence for her claims, and (c) exercised its discretion in the light of the evidence before it.
While I accept that a different Judge may have taken a different view of the material the parties put before this Court, the High Court has made plain that it is “a mistake to suppose that a conclusion that the trial judge has given inadequate or excessive weight to some factors is in itself a sufficient basis for an appellate court to substitute its own discretion for that of the trial judge.”[5]
[5] Gronow v Gronow (1979) 144 CLR 513 at p.537 (Aickin J); Mason & Wilson JJ agreeing, at p.526; Stephen J to like effect, at pp.517 & 519.
Here, respectfully, the weight of evidence clearly favoured the orders sought by the Father. This is also to say that, in my view, the matter was not ‘finely balanced.’ The evidence put before the Court was considered, and appropriately so in the light of the matters required by Part VII of the Act.
Grounds 3 & 4 provide:
3. That the Trial Judge was in error in the exercise of his discretion in failing to make interim orders which provided for a graduated basis for the child to spend time with the Father;
4. That the Trial Judge was in error in the exercise of his discretion in that he failed to place sufficient weight upon the effect on the child of separation from the Mother, who had been her primary carer since separation and her half-brother Y for a period of three (3) continuous nights on alternate weekends.
Grounds 3 and 4 may be treated together. In addition to the matters already outlined in relation to Grounds 1 and 2 (which should be taken to apply to these grounds also), the following further observations shall suffice.
First, as the earlier comments make plain, the very significant communication between the parties, over a long period of time, speaks to the Mother having no concerns about the child in the Father’s care prior to September 2013, including having regular overnight periods and for longer than one night. It was only after the Father stopped paying X’s school fees that issues of his time with X surfaced.
Secondly, the reasons in the primary judgment also confirm that (a) there is an age difference of some, modest moment between X and her brother, (b) the Father played a significant role in assisting in the care of Z even though he is not the Father’s biological child, but also acknowledged that Z may not wish to spend as much time with X as she would (which was also acknowledged by the Mother), and (c) Z attends a completely different school to X, which thereby (and anyway) militates against him spending as much time with X as might be suggested.
Thirdly, the grounds of appeal implicitly acknowledge that the issue is not about X spending time with her Father but really the amount of that time. Seen in these terms, the issue must necessarily be in terms of degree only. Indeed, subject to independent assessment by the family consultant, it may be that it is the Mother who is anxious about X’s time with her Father rather than any concern in relation to the child herself.
Fourthly, again the volume, frequency and content of the messages between the parties, which attest to the regular time that X spent with her Father, and not infrequently for two or more nights, was a telling consideration for the Court. The parenting arrangements will be re-visited by a family consultant in the near future. The parenting relationship and ‘time-with’ arrangements between Father and daughter changed markedly only when the Father stopped paying X’s school fees, and did not give his consent to X moving to (omitted) Grammar School in September 2013.
To the degree the Court can take it into account in relation to the stay application, the Father’s affidavit (filed 17th February 2014) in reply to the stay application, among other things, annexes various correspondence between the parties (annexure E). By email from the Mother to the Father dated 6th February, the Mother sought an undertaking from the Father that X would not attend the school ordered by the Court in December 2013 until the stay application was heard. Critically, the Mother added what would happen if the Father did not agree to the undertaking she required of him. She said:
If you are not prepared to provide that undertaking, I will have no option but to not permit X to spend time with you until the Stay application is heard.
The Father gave the undertaking required by the Mother because, he said (in a reply email on the same date), she had left him no choice.
A similar ultimatum was given by the Mother to the Father, as set out at [102] of the reasons in the principal judgment.
At the hearing of the stay application I expressed my concern about this email to the Mother’s solicitor. On its face, and without making any formal finding, it could be argued that (a) it shows almost a contempt of (or at least a certain disregard for) Court orders which bound both parties, and (b) it also shows a certain disregard for the child’s best interests, and that the Mother would use the child as a coercive instrument to achieve her ends. It might also be relevant to the Court considering the bona fides of the Mother’s appeal, if it be the case of an indication as to the lengths to which the Mother would go, even to using the child the subject of the proceedings, to secure the ends she seeks. Alternatively, it might simply be an indication of the Mother’s desperation. However, desperation does not justify conduct which, if established at a final hearing, might lead a court to find it to be improper, or at least inappropriate. The email might also be used to show a pattern of behaviour of the Mother. However, such matters are best left to a final hearing.
That said, in the light of the evidence noted at [102] of the judgment under appeal, and this most recent email from the Mother to the Father dated 6th February 2014, such matters may (not must) be taken to show a very concerning approach and willingness by the Mother to “do whatever it takes” to get her way. Subject to such matters being fully explored at a final hearing, and if they were so found to convey such a threat or ultimatum to the Father, it might be a significant consideration for a court regarding, inter alia, the matters set out in s.60CC(3)(i).
Grounds 5 and 6, which begin the section that relate to the Court’s order regarding the choice of school for X, may also be treated together. Those grounds are as follows:
5. That the Trial Judge was in error in making an interim determination to change the child’s schooling arrangements in circumstances where there was insufficient evidence and in particular no Family Report or expert opinion.
6. That the Trial Judge was in error in law in making an order upon an interim basis which was tantamount to an order on a final basis by determining the school which the child shall attend in the future without the benefit of the testing of evidence by cross examination.
There are a number of difficulties, in my view, for these grounds to succeed.
First, I have already noted that the Mother’s solicitor has informed the Court recently that, with X having been ‘un-enrolled’ at (omitted) Grammar School, there is currently no place for her at that school. In such circumstances, as the Mother’s solicitor seemed to concede, at least by inference in the light of the concession regarding the futility of the stay, the appeal in relation to the choice of school order is likely to be moot if not, as a practical matter, futile.
Secondly, the issue of when and how a family report might be obtained was canvassed with Counsel for both parties at the hearing. It was addressed in the reasons, among other places, at [142]. This is also to say that issues of resources, such as family reports and the delays in obtaining them, are things over which the Court has very little control.
Thirdly, in relation to both of these grounds of appeal, the Mother’s Counsel ultimately but crucially agreed at the hearing last December that it was in the interests of all (the child, and the parents) that the matter be determined on a final basis. The discussion with Counsel and the Bench on that occasion, including Counsel’s assent to the matter being determined in a final basis, is set out from the transcript for the hearing on 10th December 2013 at [143] – [147] of the reasons.
In such circumstances where Counsel for the Mother agreed to the hearing regarding the school issue on a final basis, one would have thought, respectfully, that the Mother cannot now argue that the earlier agreement of her Counsel should now count for nought, and that she should now be able to challenge the decision made on grounds that related to a procedure that was agreed to at the hearing.
Moreover, at the stay application hearing, it appeared (to some degree at least) that the Mother’s solicitor (who I stress again had only just come into the matter) had not appreciated this part of the principal judgment (or perhaps had missed its significance in the limited time available to him) that dealt with the Mother’s Counsel’s concession/agreement at the December hearing. Candidly, he said as much. It was only after the Court had read out in Court part of that judgment (which extracted from the transcript the discussions with Counsel last December) that the Mother’s solicitor seemed to appreciate the force and effect of Counsel’s concessions, whereupon an adjournment to consider a revision of the grounds of appeal was mooted. It is as well to note the following exchange with the Mother’s solicitor at the hearing of the stay application, thus:[6]
[6] T 12.
MR NICHOLL: In relation to – well – but in relation to the school, your Honour, you made a final, which is somewhat unusual, for a final order to be made on a schooling issue between the parties.
HIS HONOUR: But I thought I laid out the detail of the exchanges with counsel for the mother in the judgment and that Mr Hodgson said yes; that it needs to be determined.
MR NICHOLL: I didn’t understand – in discussions – I’m sorry. I read the judgment closer. I didn’t get that precise meaning from it.
HIS HONOUR: Well, if you go to the bottom of page 30 of paragraph 143, there’s an exchange there where I say:
HIS HONOUR: … But sorry, but I thought that really, amongst other things, that the schooling issue really is to be dealt with, effectively on a final basis, is it not?
Mr Hodgson:
That would be my – that certainly would by my submission, your Honour.
MR NICHOLL: And you then ‑ ‑ ‑
HIS HONOUR: I’m not sure how much clearer he can be.
MR NICHOLL: Yes.
HIS HONOUR: And that it’s repeated a number of times. And then I ask him in the next few paragraphs, that is, that are set out there. And then he says I’m happy with a course that I suggest about the mother having an opportunity further to put on submissions. I just have difficulty in seeing where counsel agrees with a course that a ground of appeal, respectfully, can get up, saying well, you know, you shouldn’t have proceeded this way where it’s laid out there in black and white.
MR NICHOLL: I am seeing it now. I suppose I was – now I understand why it’s in bold black and white.
HIS HONOUR: I can only do so much, Mr Nicholl.
MR NICHOLL: Yes. Well, your Honour, I’m – again, I’m picking this up since last Friday, so trying to play the best hand I can ‑ ‑ ‑
HIS HONOUR: I understand.
And further to the school issue and evidence, Counsel for the Mother also conceded at the hearing that each of the schools proposed by the parents may be considered academically the same or equal to the other. This is noted from the transcript at footnote 3 of the reasons, at [27].
In the circumstances outlined here, and particularly the agreement of the Mother’s Counsel last December to the determination of the schooling matter on a final basis, these grounds of appeal cannot succeed.
Ground 7 states: That the Trial Judge was in error in the exercise of his discretion in that he failed to place sufficient weight upon the disruption to the child changing schools and being separated from the network of friends which had been established at her present school.
The principal difficulty with this ground of appeal is that it ignores the fact that the child, in any event, will/would be starting at a different school, albeit part of the same constellation or group of schools under the style and title “(omitted) School.” The campus of the new school, while proximate to the early learning centre/pre-school, is a discrete and geographically separate entity from the pre-school.
More particularly, this ground of appeal, as with most others regarding the “school issue” either does not address the principal ground upon which this matter was decided, or fails to take into account other matters raised in the judgment, not least being that the Court could make no formal determination regarding ‘the network of friends’ of X who would or would not be attending (omitted) School in 2014, and also the number of friends (and/or relatives) who would be attending the Father’s preferred school for X in 2014.
In short: friendship groups and continuity were considered by the Court in the principal judgment, among other places, at [74] – [75], [113] – [115], and [132] and following. As factors, they were considered, but in the result, and in the exercise of the Court’s discretion, they were not decisive in any material respect.
Ground 8 states: That the Trial Judge was in error in the exercise of his discretion in failing to place sufficient weight upon the Mother’s evidence that she could afford to pay the child’s requisite school fees and would do so pending resolution of the issues between herself and the Father upon a final basis.
On a number of occasions in the principal judgment, I set out the Court’s concerns at the significant level of generality of the Mother’s evidence, as well as significant gaps in it, regarding her capacity to pay for X’s school fees (e.g. [5], [24] – [25], [77], [115] – [121], [138], [142] and [187] – [189]). This was particularly telling in circumstances where (a) it was/is not disputed that the Mother had already incurred a debt for X’s pre-school fees to the tune of $4000.00, and further, (b) there was no evidence about the payment of the school fees for the Mother’s other child, Z, except a reference to the maternal Grandmother paying half of them. The issue of the outstanding debt by the Mother to the pre-school was not addressed in any of her material filed in relation to the stay application.
Even since the reasons were provided to the parties, the only “evidence” (which has not been the subject of any application or submission) is from the maternal Grandmother (per affidavit filed 21st January 2014), who deposes (a) that she pays half of Z’s school fees (but unfortunately, still with no detail as to who pays the other half), and (b) to being willing to pay “the total fees and incidental expenses for X’s schooling” at (omitted) School.
In the Mother’s affidavit, filed 21st January 2014, she deposes (at par.24) that her Mother is prepared to pay X’s fees at (omitted) School “pending me obtaining resolution of outstanding issues between the Father and myself upon a final basis. I also anticipate that I will be in a position to pay the school fees when I am able to obtain full time employment.” Why this “evidence” from the maternal Grandmother was not put before the Court for the hearing in December is not explained.
Even if the Court were minded to consider the Grandmother’s affidavit, and the Mother’s assertion/expectation just noted, there remain, in my view, still significant “gaps” in the Mother’s material that would not, and should not, sway the Court from the original decision made on the evidence then before it. Moreover, there seems to be something of a disjuncture between the Mother’s evidence and that of her Mother: the latter seems to be offering a ‘blank cheque’, while the Mother suggests that she will assume responsibility for school fees when she gets a job – when-ever that might be, and in what-ever field, all relevant details concerning which remains unknown to the Court. The evidence from the Mother was, and respectfully remains, aspirational, general and otherwise unsatisfactory.
Ground 9 states: That the Trial Judge was in error in the exercise of his discretion in that he failed to place sufficient weight upon the benefit to the child of continuing her education arrangements, notwithstanding that she would cease to attend (omitted) Grammar School and commence to attend (omitted) Kindergarten.
This ground properly acknowledges (as did the principal judgment) that there would be, in any event, a change in the school for X in 2014. The reasons, beginning at [184], summarise the earlier evidence of the parties regarding X’s ‘giftedness’ and set out why the Court made the decision it did regarding the choice of school for her in 2014. And as already noted earlier in these reasons, by reference to the relevant place in the principal judgment ([27] and the note thereto), Counsel for the Mother fairly and reasonably conceded at the hearing last December that both schools, from an educational perspective, might properly be considered to be equal. In the light of such acknowledgement by the Mother’s experienced Counsel, I have significant difficulty seeing how this ground, and others that relate to the school decision, might equitably be seen as having any genuine or reasonable prospect of success.
Ground 10 states: That the Trial Judge was in error in the exercise of his discretion in that he failed to place sufficient weight upon the Father’s prior acquiescence and agreement for the child to be educated at (omitted) Grammar School, particularly in circumstances where he had agreed and encouraged the child’s half-brother, Y to be educated at this school.
There are at least two parts to this ground of appeal: (a) the Father’s prior acquiescence and agreement to pay school fees for X to attend the (omitted) School pre-school, and (b) the role and relevance of an alleged agreement and encouragement by the Father for the child Z (who is not the Father’s biological child) to attend (omitted) School.
First, how the Father could have “agreed” for Z to attend (omitted) School is not explained, when Z is not his son.
Secondly, I do not understand that the Father’s involvement/care of Z over the years (pre- and post-separation) was ever alleged by the Mother to have contributed to some form of agreement or acquiescence by him in relation to X attending (omitted) School.
Thirdly, as noted in the principal judgment, there is an age difference (not to mention gender) between the siblings, such that to argue that X and Z would be spending time together at school (where the respective schools are on geographically different campuses) is completely erroneous.[7]
[7] See, for example, [74] & [75] of the principal judgment.
Fourthly, the principal judgment recounted at length the number of times the Father sought to engage the Mother in mediation regarding parenting and other arrangements for X, and likewise, the number of times the Father indicated to the Mother his disagreement about X attending (omitted) School. Moreover, the Father confirmed that he was no longer able to afford to pay the fees at (omitted) School, and that after September 2013, he would cease doing so. In the circumstances outlined in the principal judgment I have significant difficulty seeing how a court could or would force a parent to continue to pay school fees where the fee-paying parent had confirmed that he (or she) could no longer afford to do so.
Ground 11 of the Grounds of Appeal, as I have noted, relates to the Mother seeking to revisit the grounds once written reasons were provided. No amended notice of appeal has been filed to this Court’s knowledge. And as already recorded, in the course of the stay hearing, the Mother’s solicitor sought, and was granted, a brief adjournment specifically to re-consider the grounds of appeal. He later confirmed to the Court that his instructions were specifically not to make such an application.
Consideration & Resolution
By reference to the Full Court decision in Aldridge & Keaton (Stay Appeal) and the principles there set out, at [18], regarding stay applications, I note the following by way of summary.
The Applicant Mother here bears the onus of establishing that there is a proper basis for the stay. While she does not have to establish any special or exceptional circumstances, she does have to establish that there is a proper basis for the application. As already observed in these reasons, in all but two instances, the grounds of appeal relate solely to the exercise of the Court’s discretion and the weight given to the evidence before the Court.
In large measure, the Court found the Mother’s evidence lacking in a significant number of respects, and that the Father’s evidence (notably the large number of messages set out in his material) supported the Father’s sworn account.
At the hearing of the stay application, after submitting that the Mother had been unable to retrieve a large number of messages which she had sent to the Father over the years which may put a different perspective on the Father’s account, the Mother’s solicitor sought to tender one message retrieved by the Mother which, he said, may lead the Court to reconsider (and stay) its [earlier] position. In relation to the proposed tender of two documents, and in response to the Court’s inquiry as to what ground of appeal the documents related, the Mother’s solicitor submitted in somewhat opaque terms thus:[8]
Well, they go to the ground that isn’t specified yet which is flagged by the wife of saying that she proposed to adduce fresh evidence and that’s part of the fresh evidence.
[8] T 10.
The tender was formally rejected, among other things, on the grounds of relevance given that the communication was in October 2009; however, the message was ‘marked for identification.’ I remarked to the Mother’s solicitor that it could also be read as supporting further the Father’s contentions, and the Court’s principal judgment regarding the good communication between the parties.
I should also note that at the stay hearing, it was submitted by Mr Nicholl that the Mother had been unable to retrieve a range of electronic messages, and which, it was submitted, indicated that either her email and/or phone message bank had been hacked. The Mother further suggested that the only person who could do this was the Father. For example, the Mother’s solicitor said:[9]
We simply don’t know what’s in the box as to this application to adduce further evidence, but the wife is asserting on oath that her material has been interfered with and that she had lost the opportunity to put matters before you which may have had relevance or may have influenced you to balance the matter differently had they been before you. If it is the case that the husband has been actively involved in some form of deliberate hacking, that could – that would be a serious matter. I’m not in a position to put anything to you other than what’s in my client’s affidavit about that.
[9] T 10.
The allegation against the Father in relation to him being responsible for “hacking” the Mother’s electronic communications was mentioned regularly throughout the stay application hearing.[10]
[10] See T 2, 6, 8 & 10.
Without issuing a formal caution, I noted my concern about such a grave allegation being made by the Mother against a serving Australian Federal Police officer without any evidence being proffered to support it. The Mother has made a complaint to the AFP about this alleged “hacking.”
To return to principles regarding stay applications, in this case, most of the grounds of appeal relate to the weight given to the evidence before the Court and its exercise of discretion in the light of it. I will not, and need not, repeat the earlier references to the High Court decision in Gronow.[11]
[11] Generally, see also the Full Court’s similar references in Aldridge & Keaton (Stay Appeal) at [17] regarding the “well established principles on the limits on interference by an appellate court with [discretionary judgments].”
The Father is entitled to the benefit of the judgment he obtained, and to the presumption of its correctness.
There is no challenge to the well-established principle that the filing of the appeal is insufficient to grant a stay. Nor is there a challenge to the bona fides of the Appellant Mother’s prosecution of the appeal.
In this regard, however, I note again, without further comment, my earlier expressed concerns in relation to the Mother’s conduct regarding (a) the recorded threats to the Father to stop his time with the child if he did not accede to the Mother’s wishes, and (b) with no evidence provided, the extremely grave allegation against the Father, and the complaint to the AFP, regarding alleged hacking of the Mother’s electronic communications.
In terms of the competing rights of the parties and the balance of convenience, I simply note that X was destined to change schools in any event because her time at pre-school had come to an end. The Father has now bought X’s uniform for (omitted) Primary, and attended to the relevant introduction to that school, as well as making arrangements with the school to cater for X missing the first two weeks of school. Further, it is now known that (omitted) School does not have a position for X at that school. The balance of convenience clearly, in my view, favours the Father and against the granting of a stay.
As to the risk of the appeal being rendered nugatory if the stay is not granted, the reality is that, as already noted a number of times (a) X was required to commence a new school in 2014 in any event, (b) if she were to attend (omitted) School now and the Full Court dismissed the appeal, X would have to change schools, and (c) there is no place for X at (omitted) School now anyway. The appeal on the school issue now is moot, a point I took to be effectively conceded by the Mother’s solicitor at the stay hearing. Indeed, the Mother’s solicitor said (emphasis added):[12]
…it seems to be the position that X is unenrolled at (omitted) School and so we – the question that needs to be poised is in the event that the court exercised its discretion to grant a stay would there be a place for her because if there’s no place to her, there’s no point to the litigation.
[12] T 21.
I have earlier noted that the Mother’s solicitor confirmed by email with the Court that there was now (i.e. in late February 2014) no place for X at (omitted) School.
Moreover, even if the stay were granted, it would not resolve the school issue because it would leave a vacuum with no orders regarding which school X would attend. A stay would only result in a stay of the Court’s order that X attend (omitted) Primary School in (omitted). To leave the child (and her parents) in such a state of limbo would be totally unsatisfactory.
I have already noted the difficulties if not singular flaws in the various grounds of appeal. Given that it is essentially a discretionary judgment and the challenge is as to the weight accorded by this Court to the evidence put before it, such challenges – without more – according to the High Court in Gronow are difficult to sustain. Respectfully, in my view, the grounds of appeal filed by the Mother are weak.
Further, the stay application was conducted, in part, on the hypothetical bases that (a) there would (or could) be evidence discovered later that would (or could) change the Court’s view in relation to the parenting and school orders made last December, and (b) because this yet to be recovered evidence was not available to the Mother (and the Court), the Mother lost her opportunity to put it before the Court. I have already noted the following from the Mother’s solicitor’s submissions, which can be put in an abbreviated form, thus:[13]
… they go to the ground that isn’t specified yet which is flagged by the wife of saying that she proposed to adduce fresh evidence and that’s part of the fresh evidence.
We simply don’t know what’s in the box as to this application to adduce further evidence, but the wife is asserting on oath that her material has been interfered with and that she had lost the opportunity to put matters before you which may have had relevance or may have influenced you to balance the matter differently had they been before you.
I don’t want to confuse you. There were really two thrusts of the stay application. One is that the decision is based on imperfect material that wasn’t available for the reason that my client attests to in affidavit and those two documents that you’ve just rejected are indicative of some material and I agree with you about the time.
… I accept that the applicant has the onus, and the thrust of the submissions that I’ve put to you relate to the unknown evidence. But merely establishing that before your Honour – that there was material that wasn’t before you that could have been, had it been available to my client, and that’s only put as a point….
[13] T 10, 11 & 15.
Respectfully, and giving every allowance for the late instructions to the Mother’s solicitor, these submissions might be termed ‘the Rumsfeld gambit.’ In a Department of Defense briefing on 12th February 2002, the former US Secretary for Defence said:
Reports that say that something hasn't happened are always interesting to me, because as we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns - - the ones we don't know we don't know.
The submissions of the Mother’s solicitor referred to ‘unknown evidence’ which may (or may not) be obtainable, and even if it is obtained, no one knows what might be (or is) in it. However, such evidence remains just that - unknown evidence. Until it is properly before the Court it is not possible to take any relevant account of it. To do otherwise would be a dangerous and ill-formed basis to disturb, or even stay, any current orders.
The second aspect of the stay application was in relation to X’s school. In this regard, the Mother’s solicitor said:[14]
[14] T 11.
The second and primary thrust of this affidavit is – sorry – of the stay application, is that to deny the application will be to create a situation whereby when the appeal court hears this matter, she will have gone to the (omitted) School for many, many months and the court, in exercising its discretion, would be reluctant to change it, even if the court was to find that there was some error in your Honour’s decision or processes were adopted by making it a final order rather an interim order or some error there. The ship has sailed. The boat has gone. It simply can’t be in X’s best interests to be chopping and changing school. And the same argument applies in relation to the parenting-type orders.
HIS HONOUR: Sorry. Just a minute. Up to their – sorry, Mr Nicholl.
MR NICHOLL: Yes.
HIS HONOUR: Doesn’t the same argument, though, apply in reverse? That if I was to grant the stay, X then goes to (omitted) School – leaving aside questions of who pays. Wouldn’t it follow from your argument that whenever the matter is dealt with on appeal, the ship has sailed and therefore that – you know, that they would be unlikely; that is, the Full Court would be unlikely to overturn any orders that would otherwise enable X to remain at (omitted) School?
MR NICHOLL: Well, your Honour, they would have done that after consideration of all of the arguments and any further evidence that needs to be adduced.
The Mother’s solicitor fairly conceded later the following in relation to the school order:[15]
My client believes that – and strongly believes – that it is in X’s best interest to remain at the grammar school. As to the court weighing the balance of convenience and the rights of the parties, your Honour, we’ve done that in the exchanges, and you’ve pointed out to me the other side of the – or the mirror image of the submission that I was putting to you, and as a matter of logic, I can’t fault it.
[15] T 15.
The orders have been in place now since mid or later December. The child, on the Father’s evidence (per his affidavit filed 17th February 2014, and his earlier affidavit, filed 4th February 2014, in support of a contravention application), was advised about the new school, but which has been resisted by the Mother – pending the finalisation of the appeal.
But for the time since September 2013, the parents have parented X amicably and well. Once the current contest is resolved, one can only hope that it reverts to that level of relative equanimity that has hitherto prevailed. In all of the circumstances, and where X no longer has a place at (omitted) School, she should proceed to her new school, in her new uniform, free of her parents’ legal entanglements. To attempt to change the December 2013 Court-ordered arrangements would be a further disruption to the child’s life, and therefore undesirable.
The Court has no knowledge of when an appeal might be heard. No relevant application in this regard has been made.
As the principal judgment sought to make plain, it is in the best interests of the child to have (a) stable arrangements regarding her new school, and (b) regular time with her Father – which had been occurring, in my view, on the evidence before the Court prior to September 2013 – pending the review and assessment by the family consultant in April.
Finally, and for the sake of the parties only, I note the following comments from Stephen J in Gronow v Gronow, where his Honour said:[16]
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….
[16] (1979) 144 CLR 513 at p.519.
For the above reasons, orders were pronounced on 19th February 2014 (a) dismissing the Mother’s application for a stay in relation to the choice of school order of December 2013, and (b) dismissing the Mother’s application to vary the parenting orders of December 2013.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 11th March 2014
2
6
1