Wheldon and Dinh (No 2)

[2010] FamCA 1159

FAMILY COURT OF AUSTRALIA

WHELDON & DINH (NO. 2) [2010] FamCA 1159

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of orders pending Appeal

Family Law Act 1975 (Cth)
Family Law Rules 2004

Clemett & Clemett (1982) FLC 91-013
JRN & IEG (1998) 72 ALJR 1329
K & B (2006) FLC 93-288
Sanders (1976) FLC 90-078

APPLICANT: Ms Dinh

RESPONDENT: Mr Wheldon

FILE NUMBER: BRC 8725 of 2008

DATE DELIVERED: 7 December 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 7 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Fajardo appearing pro bono

THE RESPONDENT: In person

Orders

IT IS ORDERED THAT

1. Paragraphs 6 and 7 of the orders made by Justice Murphy on 20 August 2010 be stayed pending the determination of an Appeal filed by the mother pursuant to the Notice of Appeal filed on 16 September 2010.

2. The Application for Contravention filed by the father on 2 December 2010 is adjourned to a time and date to be advised subsequent to orders by the Full Court of the Family Court of Australia.

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. Paragraph 5 of the orders made by Justice Murphy on 20 August 2010 be varied so that it reads:

   Until delivery of orders by the Full Court of the Family Court of Australia in respect of the Notice of Appeal filed by the mother on 16 September 2010, the father shall spend time, supervised by his adult son [J Wheldon], with the children [S] born […] March 2004 and [T] born […] January 2008 for a period not exceeding 6 hours each alternate Saturday commencing not earlier than 1.00pm, with changeover to occur at the […] Shopping Plaza.

IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8725 of 2008

MS DINH

Applicant

And

MR WHELDON

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 20 August 2010, I made orders rather and delivered reasons for judgment in respect of a parenting trial that had proceeded before me for three days from 26 to 28 July 2010.  The subject of those orders were two young children, S born in March 2004, and T born in January 2008.  Assertions by the mother that the children were at an unacceptable risk of sexual harm from their father were at the centre of that parenting trial. 

2. On 16 September 2010, the mother filed a Notice of Appeal in respect of the orders made by me. 

3. That Notice of Appeal contains five grounds as follows:

   1.The trial judge erred in characterising the preponderance of evidence tendered by the parties as a whole, w-h-o-l-e body of evidence.  For instance, with respect, his Honour’s analysis of the father’s admission was bare and simplistic which led to a characterisation that does not accord with the circumstances and details contained in the father’s account of the incident. 

   2.The trial judge erred in law by failing to apply appropriately the requisite standard of proof in a case where sexual abuse is alleged. The error led to a negative finding about the sexual abuse of the child, [S], inconsistent with established principles.

   3.On the preponderance of evidence before the Court, his Honour – if the requisite standard of proof was properly applied ought to not have been satisfied that the father did not sexually abuse the child at the very least.  Three, the trial judge erred in law in finding that the father of the child did not present an unacceptable risk to the child, [S], and the other child of the marriage, [T].  This error resulted from the errors in characterising the body of evidence as a whole and in applying the appropriate standard of proof.  Four, the trial judge erred in law in not allowing reference to published research studies in the submission of the mother.

   4.The published research information were not being tendered to assert a fact, but as a body of knowledge that would inform and consequently assist the Court ‘understand(ing) quickly the evidence before it, and to draw appropriate inferences from the evidence’, taking in to account the preponderance of evidence as a whole. 

   5.The trial judge failed to appropriately determine what is in the best interests of the children.  This failure resulted from the errors in grounds one to four.

4. The Notice of Appeal also sets out the orders sought by the mother in the event that the appeal is allowed.  In particular, orders are sought modifying an order made by me so as to read:

   The father spend time with the children at a contact centre for such period as the contact centre might accommodate on a Saturday or Sunday each alternate week, not exceeding six hours.  The father to pay all such reasonable feels as may be necessary to facilitate the contact.

5. The Notice of Appeal goes on to provide:

   4.Alternatively, if the Court is mindful that the supervised contact will not benefit the children and therefore, will not be for the best interests of the children, that the following orders will be made.

   5.The father not to have any contact with the children. 

   6.Modify order number two to read, ‘The mother shall have sole parental responsibility in respect of issues that are not ‘major long term issues’.

6. For reasons earlier given, I refused an application by the mother for leave to read and file an affidavit by her.  The affidavit had not been served on the father and, as at the time of the application, the father had not seen it. 

7. I asked counsel for the mother to outline what that affidavit contained.  Three responses were given.  It was said that the affidavit was a response to the father’s response, that it contained more details of unacceptable risk, and that it contained details of an incident alleged to have occurred on the first occasion of time between the children and the father pursuant to my orders.

8. In respect of the last matter, it was made plain by counsel that a series of factual assertions were made contrary to those asserted by the father, and to use counsel’s words, “The Court would accept [the mother’s] evidence.”

9. Unless a factual issue is directly relevant to specific matters which are, in turn directly relevant to the determination of the discretion as to whether to grant a stay or not, the resolution of factual issues are beyond the scope of proceedings such as these. 

10. Further, and in any event, the resolution of that factual issue does not assist the mother in seeking to discharge the onus upon her to satisfy the Court that a stay should be granted pending the appeal.  Accordingly, the application for leave to read and file that affidavit was refused.

11. The unusual history of this matter – which sees, for example, the children the subject of the proceedings having lived with their mother in China for a substantial period of their early lives – was detailed in the reasons for judgment delivered by me on 20 August. 

12. Significant to the current application is an assertion by the father that it is “another stalling exercise” by the mother – that is, an attempt by the mother to prevent (or truncate) time between the children and their father.

13. I recorded in my reasons that the mother says that a finding by this Court about sexual abuse contrary to her belief as to its occurrence (even a finding that it did not occur) will have no impact on her asserted genuine and unshakable belief that it did: “I could never accept such a result.” Further, she says that she will not countenance the children spending time with the father unsupervised: “I will sit outside his house for an hour for a week for as long as it takes.”

14. Further, illumination of the father’s submission might be seen also from para 181 of my reasons for judgment. I said there that:

    181.The resolution of that issue is not, in this case, cut and dried.  I tend to agree with the submission of the ICL that the mother’s attitude had an air of theatricality or perhaps over-dramatisation about it.  I am concerned, though, that cultural issues of which I am not aware may play a part.  So too, I find aspects of the mother’s behaviour odd in a person with a genuine belief that something sinister had happened to young daughter.  And I again refer to the absence of inquiry at the kindergarten.

15. I went on, however, to say that:

    184.… having considered carefully all of the evidence and having carefully observed the mother during the course of the proceedings, I am on balance, in agreement with the assessment of [Family Consultant Mr P] that the mother genuinely believes that the father has abused their daughter.  And that she holds genuine concerns about the father posing a risk of further abuse.

16. No aspect of the appeal by the mother challenges that finding. Nor, of course, is there any appeal by the father which challenges any orders made. 

17. I am not prepared to find, in the context of this application, having regard to all of the matters raised by me during the course of the earlier reasons for judgment, including those to which I have specifically referred, that the appeal filed by the mother – and indeed this application – is to use the father’s words, “A stalling exercise.”

18. I am not prepared to find that the appeal – or indeed this application – is vexatious, instituted primarily for the purposes of delay or that it seeks to subvert the orders made at the trial. 

19. The principles applicable to stay have been referred to in a number of earlier decisions of this Court.  The most well-known of the early decisions is probably Clemett & Clemett (1982) FLC 91-013. That case referred to a number of matters (primarily referable to the general law) which have been held to properly inform the discretion as to whether or not to grant a stay.

20. It needs to be observed that as Rule 22.12 of the Family Law Rules 2004 makes clear:

    The filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from unless otherwise provided by legislative provision.

21. The law underlines that position by holding that a stay is not lightly granted, or granted as a matter course once a Notice of Appeal has been filed; the applicant bares the onus of establishing to the Court that the interests of justice require the stay to be granted. 

22. It is perhaps significant that no criteria are listed in the Rules in respect of the granting of a stay.  The matters relevant to the Court’s discretion are left to the general law. 

23. The decision made by me was in respect of parenting orders.  There is authority for the proposition that particular considerations might apply in respect of the grant of a stay from a parenting order. It is clear that an application for a stay is not, of itself, an application for a parenting order, and accordingly, the so-called paramountcy provision with respect to best interests is not, as a result, applicable. 

24. Nevertheless, there are judicial statements – not least those from Kirby J in the High Court that the interests of the children must, “Always be in the mind of a court in making an order affecting their interests.” (JRN & IEG (1998) 72 ALJR 1329.)

25. In K & B (2006) FLC 93-288 the Full Court of this Court said, at [24]:

    There is no dispute in this case that the appeal is based on substantial grounds, that it is brought bona fide and is not a mere delaying tactic.  The expedition of the appeal is sought and it can be dealt with within a reasonable period of time.  In these circumstances the question of the circumstances of the child at the time the orders were made required careful and weighty consideration.

26. It has also been said in a line of decisions –as far back as statements made by the former Chief Justice of this Court in Sanders (1976) FLC 90-078 ‑ that changes in arrangements in respect of the child should be kept to a minimum. The proper context for that consideration was, in my respectful view, given in the decision by the Full Court in K & B referred to above. 

27. I have already determined that the appeal in this matter is brought bona fide and is not a mere delaying tactic nor an action designed to subvert the orders made on that occasion.

28. It is sometimes said that the merits of the appeal is a relevant consideration.  A judge whose orders are being appealed might have some concerns about, as it were, passing judgment on the merits of an appeal against his or her orders.  It may be better to put it that the question is whether the appeal has behind it substantive grounds in the sense that there are grounds, which on their face, assert error that can be identified by reference to the circumstances of the case and the reasons for judgment at the trial. 

29. Within that context, I should say that I find some of the grounds (or, perhaps, the way in which they are expressed) to be somewhat perplexing.

30. The submissions made on the mother’s behalf today indicate that, central to the appeal, is the assertion contained at ground 3 that there are errors in law made by me in an ultimate finding that the father did not present an unacceptable risk to the child. 

31. In circumstances where the wife asserts an implacable belief that sexual abuse has occurred and that there is a risk of it occurring in the future, and where the components of the evidence in support of that central assertion have been addressed in respect of very young children, the appeal might be seen to be based on substantive grounds ‑ whatever may, or may not be, the merits of it.

32. It seems to me that that is a particularly important consideration.  So too, a consideration of the factor that the failure to grant a stay would render the appeal nugatory. 

33. In the current circumstances the mother has acted in a way which, she says, is protective of young children and in circumstances where the appeal might render my decision wrong.  The appeal would be rendered nugatory if, in the intervening time, the father is permitted unsupervised time with the child. 

34. In respect of that issue, counsel for the mother was unable to tell me when the next sittings of the Full Court in Brisbane would occur. I have ascertained that the Full Court will sit in Brisbane on 14 February 2011.  That is, of course, very soon.  I am told by counsel for the mother that the directions hearing in respect of the appeal will be held on 15 December, but no one is in a position to inform me as to whether the appeal would be likely to be heard in those February sittings.  The next sitting of the Full Court in Brisbane, after the February sitting, commences on 30 May which, of course, is much further away. 

35. However, where the allegations at the centre of parenting proceedings is as serious as sexual abuse of a young child, and where the mother has, on her case, sought to act protectively in respect of the children, and where the effect of the orders made by me would be that time between the father and those young children will be unsupervised, rendering a successful appeal nugatory is, in my view, a very important consideration in respect of the discretion in this case. 

36. I also take in to account the hardship caused by the granting or the refusal of a stay. Although not submitted directly by the father, it is implicit in the case he ran in the trial, and in the submissions that he made, that his inability to see his children in an unrestricted way presents him with a very significant hardship.  So much is, I would have thought, axiomatic if the findings and orders made by me are rendered unimpeachable. 

37. However, it is necessary to balance as against that the interests of these two young children.

38. Whilst it might be true that the application for the granting of a stay is not a parenting order and, therefore, the provisions of the Act giving paramountcy to the best interests of those children are inapplicable, the interests of young children is, as Kirby J says, a highly important matter and is always relevant to this Court making any order that might affect their interests. 

39. That, too, is, in my view, a very significant consideration in the present case. 

40. I am also highly conscious of the fact that if the orders made by me are carried out they represent a significant change for the children in the erstwhile arrangements that have applied to them.

41. In examining the balance between the considerations to which I have just referred, namely the potential for hardship to the father on the one hand, and the potential to cause upset to the children and to the mother on the other, it is to be noted that time between the children and the father would be supervised, pursuant to my orders, until 18 February 2011 ‑ that is until, approximately, the hearing of the appeal if it is to take place during the February sittings.  Thereafter, the orders provide that, for a period of six months commencing 19 February 2011, the father shall have unsupervised time on Saturday or Sunday but only for a period of six hours from 10 am until 4 pm.

42. It is, in my view, difficult, then, to see merit in the application for a stay during the time between now and 18 February 2011, during which time, in any event, the orders provide that the time with the children shall be supervised. 

43. Thereafter, there is the possibility, either because the appeal is not heard in the sittings of 14 February, or because it is heard and judgment is not delivered immediately, that the provisions of paragraph 6 of the orders would apply. That raises the prospect of the proceedings – I beg your pardon – that raises the prospect of unsupervised time occurring for a period of at least three months once the provisions of paragraph 6 of the orders commence.  The factors relevant to the balancing of hardship to the father and the interests of the children become relevant to that particular time frame. 

44. Although I am myself not convinced of the merits of the appeal – at least as expressed in the current grounds – it seems to me that the balance sways in favour of the interests of the children pointing to a stay of the orders being made pending an appeal being determined.

45. The Application in a Case refers only to paragraphs 6 and 7 which, of course, only come in to operation in circumstances where either the appeal is heard in February and judgment not delivered for a period of time, or the appeal is heard in the sittings commencing 30 May.  On the current state of the evidence it is not possible for me to say which of those events will occur.  It seems to me that the safer course, having regard in particular, to the best interests of these children and to the other factors earlier identified as relevant to my discretion, is to grant a stay in terms of the orders sought in the Application in a Case filed on 6 October 2010.

46. The orders made after the trial provide, at paragraph 5, for there to be supervised time for a period of approximately six months until the middle of February.  Understandably, no application is made to stay that paragraph of the orders; the orders sought by the mother consequent upon a successful appeal provide that supervised time for a period of six hours should be the order made.

47. It transpires that since 20 August 2010, for whatever reasons and whoever might be seen to be, “at fault”, that the time provided for, supervised at a contact centre has not occurred.  There are – as with most aspects of this case – assertions and counter-assertions as to why that is so.  The mother asserts that she did everything necessary so as to facilitate time at the Contact Centre but the father did not.  The father denies that this is the case. 

1. The mother asserts in respect of the stay application, that on the one occasion where an attempt was made to facilitate time with, in effect, her as the supervisor, it did not go well. Once again, there are assertions and counter-assertions as to what occurred or did not occur on that day, and allegations and counter-allegations about who is telling the truth. 

2. When I made inquiries as to what proposals there would be so as to ensure that the father saw the children between now and the determination of the appeal consistent with the provisions of paragraph 5 of the orders made on 20 August 2010, the father asserted that there were difficulties in a contact centre being available until at least March next year.  That assertion is not contradicted.

3. When I asked the mother what proposals she had for there to be supervised time in accordance with paragraph 5 – and with its spirit – she indicated that she would supervise the children on periods of time with the father but only upon an undertaking by the father that he would not remove the children at any time from her sight. 

4. The prospects of the adequate time with the father occurring with the mother supervising the children in circumstances where she made it abundantly plain at the trial, and again now, that she implacably believes that he has perpetrated sexual abuse upon them are, in my view, slim at best. The potential for conflict is high as is the potential for yet more assertions and counter-assertions.

5. In circumstances where the father denies any such behaviour and trial findings support his position, and where likelihood of conflict might be seen to be extremely high, it cannot, in my view, be seen to be in the bests interests of the children. 

6. In light of the difficulties with respect to time at a contact centre, the father proposes that his adult son be the supervisor.  The mother opposes this on three bases.

7. First, it is said that the father’s son, J Wheldon, does not believe that his father has, or indeed is capable of, perpetrating sexual abuse on these children. Secondly, it is said that the younger child is aged only 2½ and it is necessary for her to have a nappy changed every now and again.  It is (implicitly) suggested that J would not be capable of undertaking that task, or perhaps undertaking that task properly and competently.  Thirdly, it is said that the children do not know J. 

8. When J Wheldon was proposed as the potential supervisor, I was told that he was sitting in the well of the Court.  Consistent with the provisions of Division 12A of the Act and the nature of these proceedings, I asked Mr Wheldon to give sworn oral evidence which he did.

9. He swears that he is married, aged 24, and employed as a banker.  He has his own child – he and his wife’s first child is about eight weeks old.  He says then, (understandably enough, it might be thought) that he is well experienced in the changing of nappies.  No allegation is made by the mother against J of any type or description save that he does not know the children.  J denies this; he says the children know him although it seems plain on the evidence that was before me at the trial that the relationship between he and the children has not been at all extensive. 

10. The assertion that J – who in the short time he was in the witness box impressed me as witness – should not be the supervisor of time between the father and the children because he does not believe the allegations against his father has substance.  J made it very plain in the witness box that he does not believe that his father has perpetrated any such behaviour, and indeed it seemed implicit in what he said, that he does believe that his father is capable of any such behaviour.

11. This is undoubtedly a significant issue to be considered when assessing whether J should be the supervisor for these periods of time.  However, it is not by any means the only consideration.  These children have a right to see their father enshrined in statute.  Their right to see their father is consistent with findings made by me at a trial noting that the orders made as a result are the subject of an appeal.  But, the mother (implicitly) recognises that right in seeking orders for supervised time consequent upon a successful appeal.

12. Of course, the determination of whether these children should have their right to see their father put in to place obviously must be balanced against appropriate steps to ensure their safety in the circumstances with which the Court is confronted. Those circumstances include findings by me that the father poses no unacceptable risk to the children. An appeal directly challenges those findings. The mother contemplates supervised time.

13. Risk is by no means a unitary concept.  It is true that a prospective supervisor’s belief system is a component in assessing risk in the current circumstances.  However, it seems to me that other matters also pertain to an assessment of any asserted risk.

14. First, the father and J can be under no doubts whatsoever that the mother has an extraordinarily high level of concern about the fact that behaviour has occurred. To describe her as particularly vigilant probably understates the position.  They can have no doubt that their every move, every word and every action will be scrutinised with considerable care by the mother. They know that these proceedings are not yet complete in the sense that the matter will be returning to this Court (albeit on appeal).  The father and J understandably each know that any concerns that the mother has will, of course, be raised by her and that, as it were, the eyes of the Court are upon them.

15. That, as it seems to me, is a significant matter in assessing the nature and extent of any risk that might be presented to these children if J was to be the supervisor for a relatively short period of time between now and the finalisation of the appeal. 

16. Secondly, it seems to me highly relevant that no allegations of any sort are made against J.  Thirdly, he is himself the father of a young child. The potential for harm to young children would – unless he is a wholly negligent parent – be uppermost in his mind as they are with any reasonable parent. I see no reason to suggest otherwise in the case with J.

17. On balance it seems to me that any potential risks associated with J being the supervisor are outweighed by the right of these children to see their father, albeit that that time is to occur in circumstances that are curtailed by reason of that supervision.  I will so order. 

18. I propose to order that the supervised time occur for a period of time consistent with that which the mother contends in Part F of her Notice of Appeal ought be the quantity of time ordered by the Full Court, namely six hours.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 7 December 2010.

Associate: 

Date:  21 December 2010