WINDSOR & KAVA
[2015] FamCA 668
•13 August 2015
FAMILY COURT OF AUSTRALIA
| WINDSOR & KAVA | [2015] FamCA 668 |
| FAMILY LAW – Application for stay pending appeal to Full Court – Where final parenting orders made by consent – General principles considered – Stay refused. |
| Aldridge v Keaton(Stay Appeal) (2009) FamCAFC 106 Charring & Bunt [2015] FamCAFC 149 Clemett and Clemett (1981) FLC 91-013 JRN and KEN v IEG and BLG (1998) 72 ALJR 1329 K & B (2006) FamCA 848 EJK v TSL (2006) FamCA 806 |
| APPLICANT: | Ms Windsor |
| RESPONDENT: | Mr Kava |
| INDEPENDENT CHILDREN’S LAWYER: | Mahony Family Lawyers |
| FILE NUMBER: | PAC | 3320 | of | 2010 |
| DATE DELIVERED: | 13 August 2015 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 10 August 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Litigant in person (appearing by telephone) |
| COUNSEL FOR THE RESPONDENT: | Litigant in person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mahony Family Lawyers |
Orders
That the father’s application for stay pending appeal be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Windsor & Kava has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 3320 of 2010
| Ms Windsor |
Applicant
And
| Mr Kava |
Respondent
REASONS FOR JUDGMENT
The subject children are X born in 2004, aged 11 and Y born in 2009 aged nearly 6.
The applications before the Court are firstly that of the father seeking:
a)A stay of parenting orders made by consent pending the determination of his appeal to the Full Court of this Court in relation to those orders;
b)That both parties ensure that the children are known by their last name of Kava;
c)That the children keep their Australian citizenship;
d)That the mother reimburse the father single expert’s fees of $12,100 paid by him;
e)That in the event of a death of a blood relative, orders be suspended to allow the children to spend time with the parent for the purposes of attending the funeral or wake.
The father relied on:
a)His application in a case filed 17 July 2015;
b)His affidavits filed 17 July 2015, 31 July 2015 and 10 August 2015.
The father sought to proceed only in relation to his application for stay.
The mother’s application seeks orders that in effect seek to implement the orders facilitating the relocation of the children to Singapore and is not the subject of the current determination.
History of the proceedings
It is pertinent to the considerations relevant to a stay pending appeal to consider the history of this matter.
Initially final orders as to parenting were made by Federal Magistrate Halligan, as he then was, following contested proceedings in the Federal Magistrates Court, as it then was, on 11 October 2012 (Windsor & Kava [2012] FMCAfam 1221).
The orders provided:
a)The mother have sole parental responsibility of the children;
b)The children live with the mother;
c)The children spend time with the father as follows:
(i)Each Christmas Day from 9:00am until 5:00pm;
(ii)Each Father’s Day from 9:00am until 5:00pm;
(iii)On the children’s birthdays, from 3:00pm until 7:00pm;
(iv)For the first six months from the date of these orders, being every alternative weekend, from Friday at 3:00pm until the following Saturday at 5:00pm, commencing on 19 October 2012;
(v)For the following six months, being every alternative weekend from Friday at 3:00pm until the following Sunday at 5:00pm, and thereafter;
(vi)Thereafter, every alternate weekend from Friday at 3:00pm until the following Monday at 9:00am, or Tuesday 9:00am if the Monday is a public holiday;
(vii)Commencing with the school holidays at the end of Term 1, 2015, for the second half of all school holidays, and the father’s time under the preceding sub-paragraph shall be suspended during school holidays on the commencement of this provision;
d)The father’s time with the children if relevant, be suspended from 9:00am to 5:00pm on Mother’s Day;
e)For the purpose of the school holiday orders as referred to above the school holidays shall be defined to commence on the last day of school term prior to the school holidays, and shall be defined to conclude on the last day of such school holidays;
f)The place of changeover is to take place at either:
(i)the McDonald’s Restaurant located at …; or
(ii)the children’s school if such a changeover takes place on a weekday during a school term period;
g)Each party shall do all things necessary to ensure that the other party is sent directly from their school, copies of all school reports, weekly bulletins, correspondence and school photograph applications;
h)Each other party shall inform the other in a timely manner, all significant medical events, and significant educational and sporting events, directly relevant to the children;
i)Within 7 days from the date of these orders, the parties each contact Unifam [Suburb DD] and do all things necessary to apply to be accepted in the “Keeping the Contact Program” and if accepted each party shall attend all appointments as directed by Unifam [Suburb DD];
j)Within 7 days from the date of these orders, the parties each contact Relationships Australia and do all things necessary to enrol in such parenting group if available, focusing on improving parental interaction as is recommended by that organisation, and thereupon each party will attend all appointments required by Relationships Australia;
k)The mother shall not engage the children in any extracurricular activities that may occur during times the children are to be with the father under these orders without the father's prior written consent;
l)The mother shall cause the children to telephone the father at 6:00pm each Monday, Wednesday and Friday that the children are not spending time with him and the father shall make himself available to receive the call from the children at those times;
m)Each party is restrained from:
(i)denigrating the other party or members of the other party’s family in the presence or hearing of the children and shall ensure no other person does so;
(ii)discussing these proceedings with or in the presence or hearing of the children and from showing the children any documents filed in or prepared for these proceedings, and shall ensure no other person does so; and
(iii)passing information or messages through the children to the other parent.
The reasons for judgment of Federal Magistrate Halligan as he then was reveal the mother and father to have a significantly conflictual relationship and little insight into the needs of their two children.
The primary proceedings
The primary proceedings commenced with the mother filing an Initiating Application on 20 February 2014. In that application the mother sought orders that in summary relevantly provided:
a)That the orders made on 11 October 2012 continue; and
b)That the mother be permitted to take the children to Singapore to facilitate the children visiting the paternal grandmother.
On 27 May 2014 the mother filed an Application in a Case seeking interim orders that in summary provided:
a)That the mother have sole parental responsibility for the children;
b)That the children live with the mother;
c)That the children’s names be removed from the airport watch list;
d)That the mother and children be permitted to relocate to Singapore;
e)That after relocation the mother facilitate electronic communication between the children and the father;
f)That otherwise the children spend time with the father as agreed between the mother and father;
g)That in the event that the father is in Singapore the children spend time with the father each Wednesday from after school to 8:00pm and each Saturday from 8:00am to 8:00pm and commencing in 2015 for the second half of all school holidays;
h)That the mother provide to the father children’s school reports and other information relevant to their welfare;
i)That the mother be permitted to renew the children’s Australian passports without the father’s signature; and
j)That the father be restrained from attending the mother’s residence and any place of work.
On 16 June 2014 the father filed a response to the mother’s Application in a Case, that response seeking relevantly the following orders:
a)That the mother’s Application in a Case filed on 27 May 2014 be dismissed;
b)That the orders made on 11 October 2012 be discharged;
c)That the father have sole parental responsibility for the children;
d)That the children live with the father;
e)That should the mother relocate to Singapore, she provide to the father her residential and work addresses, email and contact phone number;
f)That should the mother reside in Singapore, the children shall communicate with the mother by Skype or FaceTime communication each Monday, Wednesday and Friday between 7:00pm and 8:00pm and on such further or other periods as are agreed between the mother and father; and
g)That should the mother be in Sydney the children spend time with the mother each Wednesday from after school to 8:00pm and each Saturday from 8:00am to 8:00pm and commencing 2015 the second half of school holiday periods.
On 28 July 2014 Judge Halligan in the Federal Circuit Court of Australia made various procedural directions in relation to documents filed by the parties and otherwise ordered:
a)That an Independent Children’s Lawyer (“ICL”) be appointed to represent the interests of the children; and
b)That proceedings be transferred to this Court.
As a consequence of the interim orders sought in the matter proceedings were listed for a case management hearing on 15 August 2014. On that date the mother appeared by telephone from Singapore, the father in person and the ICL also appeared. Pending determination of the parties’ respective interim applications orders were made to the following effect:
a)That the father and mother have equal shared parental responsibility for the children;
b)That the children live with the father;
c)That the children spend time with the mother as agreed between the parties in writing and in default of agreement and in the event that the mother is in Sydney each weekend from 9:00am Saturday until 5:00pm Sunday;
d)That whilst the mother is resident in Singapore the father shall facilitate the children having electronic communication with the mother not less than each alternate day between 7:00pm and 8:00pm Australian Eastern Standard Time, with the mother to initiate such communication with the father;
e)That the mother give the father not less than 72 hours’ notice of her intention to travel to Australia;
f)Proceedings be adjourned for interim hearing to 2:15pm on 29 August 2014.
Following the interim hearing orders were made on 5 September 2014 as follows:
PENDING FURTHER ORDER
(1)That parenting orders made on 11 October 2012 be suspended pending further order.
(2)That the father have sole parental responsibility for the children [X] born … 2004 and [Y] born … 2009.
(3) The children live with the Father.
(4)That the children spend time and communicate with the mother as follows:
(a)as agreed to by the father and mother in writing such writing to include SMS or email communication and in default of agreement:
(b)whilst the mother is resident Singapore the father shall facilitate the children having electronic communication with the mother by Skype, FaceTime or similar method of visual communication each day between 7:00pm and 8:00pm Sydney time with the mother to initiate such communication with the children and for the purposes of such communication the father shall ensure that the children are able to receive the mother’s communication between the said times provided always that should the children or either of them wish to so communicate with the mother at other times the father shall use his best endeavours to facilitate such communication and provided always that whilst the children are communicating with the mother the father shall facilitate the children having reasonable privacy;
(c)whilst the mother is resident in Singapore the father shall facilitate the children having communication with the mother by email and/or telephone at all reasonable times and the father shall facilitate such communication by ensuring that he at all times has an available email address known to the mother and an available landline or mobile telephone number known to the mother with such communication to be initiated by the mother provided always that should the child [X] wish to speak to or communicate with his mother at reasonable times and with reasonable frequency the father shall initiate such communication on behalf of the child and provided always that whilst the children are communicating with the mother the father shall facilitate the children having reasonable privacy;
(d)in the event that the mother proposes to travel to Australia she shall provide to the father not less than 72 hours’ notice of her intention to do so and should the mother be in Sydney during school term the children shall spend time with the mother each weekend from after school/preschool Friday until before school/preschool Monday for no more than 2 consecutive weekends and provided always that should the mother be in Sydney for school holidays the children shall spend a period of not less than 5 consecutive nights in such school holiday period with the mother with such period to be agreed to by the mother and father and in default of agreement during the last week of each school holiday period;
(e)in the event that the mother remains resident in Singapore the children shall spend time with the mother during the period of the term 3 school holidays (20 September 2014 to 6 October 2014) for a period of 7 consecutive nights during the last week of the said school holiday period so as to facilitate the children’s return to Australia by no later than the day prior to the resumption of school term and for the purposes of this order:
(i)the mother shall within 14 days from the date of these orders notify the father in writing of the proposed dates of travel for the children and book and pay for the children’s airfares Sydney – Singapore – Sydney at the best price reasonably available,
(ii)the father shall upon being notified by the mother of travel arrangements for the children book and pay for his own airfares Sydney – Singapore – Sydney so as to accompany the children and for his accommodation whilst the children are in Singapore,
(iii)the father shall within 14 days of the children’s return to Australia reimburse the mother as to one half of the children’s airfares and in default of the father reimbursing the mother the mother shall be entitled to offset the amount otherwise reimbursable to her by the father against her child support liability from time to time,
(iv)that whilst in Singapore the father shall ensure that the children spend time with the mother at all times when the mother is not working and should the mother be working collect the children from the mother each morning and return the children to the mother each afternoon or evening.
(5)That the father do all things necessary to enrol and ensure the attendance of the child [Y] at the [School AB] at [Suburb BC] in 2015 and prior thereto ensure the child is properly assessed for his school enrolment.
(6)Liberty to the mother to apply on short notice as to Christmas school holidays in the event of no agreement.
(7)Liberty to apply on short notice as to implementation or enforcement of these orders.
On 19 September 2014 an order was made for the preparation of a Single Expert report by Dr FF psychiatrist with the father to pay such fees in the first instance. Ultimate liability for the fees was to be determined at trial.
Subsequently the parties filed further interim applications that were the subject of further orders on 9 December 2014 as to the Christmas school holidays 2014/2015.
The proceedings were later relisted by the ICL as to the question of payment of the Single Expert report fees as the father had refused to pay. It was necessary to make further orders as to the children’s time with the mother when she was in Australia for the report interviews as the parties could not agree.
The Single Expert report was released on 9 March 2015 and proceedings listed for the continuation of the Less Adversarial Trial on 23 March 2015. On that day the parties were unable to agree as to the children’s time with the mother during the forthcoming school holidays and orders were made to deal with the issue.
Trial directions were made and the matter was listed for hearing 22 June 2015 for three days.
At trial the mother appeared unrepresented and the father was represented by Ms Goodsell of counsel on a direct brief.
The hearing proceeded for three days with the Single Expert giving evidence in person on the third day. His oral evidence took up most of the morning and concluded at 12:25pm.
Subsequent to the completion of the Single Expert’s evidence the Independent Children’s Lawyer’s counsel on the Court’s invitation informed the Court of the orders to be sought by the ICL.
The parties were invited by the Court to take the opportunity to consider the ICL’s position and both parties indicated that they would like that opportunity. The matter was stood down for some time and subsequently detailed and comprehensive orders were made by consent that are now the subject of the father’s appeal.
The consent orders are as follows:
1.That all previous orders with respect to the children [X] and [Y] be discharged.
2. That the mother have sole parental responsibility for the children.
3. That the children shall live with the mother.
4.That the mother shall be at liberty to relocate the residence of the children to Singapore.
5. That the children shall spend time with the father as follows:
a.In the children's summer school holiday period in 2015 and each alternate year thereafter for a period of three weeks, being from the first Saturday of holidays for 21 nights thereafter with such time to occur in Australia unless nominated by the father to occur in Singapore.
b.In the children's summer school holiday period in 2016 and each alternate year thereafter for a period of two weeks, being from 27 December for 14 nights with such time to occur in Australia unless nominated by the father to occur in Singapore.
c.In the children's June school holiday period in 2016 and each alternate year thereafter for a period of three weeks, being from the first Saturday following the conclusion of school attendance to the fourth Sunday of such holiday period with such time to occur in Australia unless nominated by the father to occur in Singapore.
d.In the children's June school holiday period in 2017 and each alternate year thereafter for a period of two weeks, being from the first Saturday following the conclusion of school attendance to the third Sunday of such holiday period with such time to occur in Australia unless nominated by the father to occur in Singapore.
e.In the short school holiday periods of the children's school, for one half of such holidays in the event the holidays are two week holidays, being the first half of such holidays commencing on the first Saturday of the holiday period to the middle Sunday of such holiday period with such time to occur in Australia unless nominated by the father to occur in Singapore.
f.In the short school holiday periods of the children's school, in the event the holidays are one week holidays, for one such period as nominated by the father, commencing on the first Saturday following the last day of school attendance and concluding on the following Friday with such time to occur in Australia unless nominated by the father to occur in Singapore.
g.At such times during school terms as the father may be present In Singapore for up to seven consecutive days as nominated by the father on condition that:
i.The father provides 7 days notice of such intended travel.
ii.Such occasions do not occur any more frequently than once per month.
iii.The father ensures that the children attend school during such periods on all days that school attendance is required.
h.At such other times as agreed in writing between the parties.
6. That in order to facilitate Orders 5(a) to 5(f) herein:
a.The children shall travel to Australia and by return to Singapore as unaccompanied minors unless the mother is travelling to Australia on the same flight;
b.The mother shall book the travel for the children and meet the costs of airfares and associated airline fees for the children;
c.The mother shall complete all forms required by the airline to facilitate the children's travel as unaccompanied minors, including delivering the passports to the airline counter at book in;
d.The father shall meet the children at Sydney Airport at the arrival of the children and deliver the children to the checkout as unaccompanied minors for the return journey on each occasion that the children travel as unaccompanied minors;
e.In the event the mother is travelling with the children to and from Australia, she shall deliver the children to and collect the children from the father's residence at the commencement and conclusion of the father's time and the father shall remain at the door of his residence and is restrained from approaching the mother and the mother shall remain at the front path of the father's premises and is restrained from approaching the father;
f.The father is restrained from travelling with the children unless with the written consent of the mother;
g.The mother shall provide to the father a travel itinerary for the children including any documents required for unaccompanied minor travel no less than 21 days before the commencement of the proposed travel;
h.The mother shall send a sms to the father once the children have checked in for travel advising the father of such and another sms to the father once she has collected the children on the return journey advising the father of such;
i.The father shall send a sms to the mother once the children have checked in for travel advising the mother of such and another sms to the mother once he has collected the children advising the mother of such.
7.That in order to facilitate Order 5(g) herein the father shall collect the children from the mother's residence at the commencement of time and return the children to the mother's residence at the conclusion of such time and the mother shall remain at the door of her residence and is restrained from approaching the father and the father shall remain at the front path of the mother's premises and is restrained from approaching the mother.
8.That the mother shall sign all such documents and do all such things as may be necessary to authorise the father to obtain information from each of the children’s schools including but not limited to:
a. school reports;
b. progress updates;
c. newsletters;
d. correspondence normally made available to children.
9.That each of the parents shall inform the other forthwith in the event either of the children suffer a serious illness or injury requiring their attendance at a hospital facility and shall authorise the medical facility to disclose information to the other parent about the child's attendance, diagnosis, treatment and prognosis.
10.That the father shall communicate by Facetime with the children as follows:
a.At times the children are in the car of the mother, each Tuesday, Thursday and Sunday between 6.30 and 7pm (Singapore time) facilitated by the father calling the mobile number nominated by the mother with the mother ensuring that the children have access to privacy to receive the calls from the father.
b.On each of the children's birthdays between 6.30 and 7pm (Singapore time) facilitated by the father calling the mobile number nominated by the mother with the mother ensuring that the children have access to privacy to receive the calls from the father.
c.On the father's birthday between 6.30 and 7pm (Singapore time) facilitated by the father calling the mobile number nominated by the mother with the mother ensuring that the children have access to privacy to receive the calls from the father;
d.On Father's Day between 6.30 and 7pm (Singapore time) facilitated by the father calling the mobile number nominated by the mother with the mother ensuring that the children have access to privacy to receive the calls from the father;
e.On Christmas Day if the children are not in his care between 6.30 and 7pm (Singapore time) facilitated by the father calling the mobile number nominated by the mother with the mother ensuring that the children have access to privacy to receive the calls from the father;
f.On Good Friday between 6.30 and 7pm (Singapore time) facilitated by the father calling the mobile number nominated by the mother with the mother ensuring that the children have access to privacy to receive the calls from the father.
11.That the children shall communicate by Facetime with the mother as follows when in the care of the father:
a.On Sunday each week in the school holidays the children are in Australia between 6.30 and 7pm (Australian Time) facilitated by the mother calling the mobile number nominated by the father with the father ensuring that the children have access to privacy to receive the calls from the mother.
b.On Christmas Day between 6.30 and 7pm (Australian Time) facilitated by the mother calling the mobile number nominated by the father with the father ensuring that the children have access to privacy to receive the calls from the mother.
12.That the parties shall communicate with each other by email with respect to non-urgent matters and by sms with respect to urgent matters.
13. That the parties shall keep each other informed of:
a. Their residential address;
b. Their contact telephone number;
c. Their email address.
14.That each party is restrained from denigrating the other or members of the other parties family in the presence of or hearing of the children and shall remove the children from the presence of any third party who may do so.
15.That the exercise of sole parental responsibility for the children does not extend to the granting of passports or change of citizenship for the children and such applications will require the joint signature of the parties or further Order of the Court.
16.That each parent pay the costs of the ICL in equal shares in accordance with the Schedule of Costs of the ICL.
17.That each party is at liberty to travel internationally on holidays with the children to Hague Convention countries upon provision of an itinerary to the other parent no less than 21 days prior to travel.
BY CONSENT, IT IS FURTHER ORDERED THAT:
18.The operation of these orders be suspended until such time as the Father and Mother have obtained under the Guardianship of Infants Act (Singapore) “mirror orders” reflecting the terms of the order made by consent today and that a sealed copy of those orders has been made available to the Independent Children’s Lawyer and for this purpose:
a.The Mother and Father shall do all things necessary to expeditiously make application to the appropriate court in Singapore for consent orders to be made under the Guardianship of Infants Act (Singapore) in terms that mirror the orders made by consent today;
b.The Mother and Father shall pay equally any necessary costs associated with the obtaining of those consent orders;
c.That immediately upon a sealed copy of orders made as foreshadowed in Singapore is available the Mother and or Father shall forthwith forward a copy of those orders to the Independent Children’s Lawyer in these proceedings.
19.Upon receipt of a sealed copy of the Singapore orders the Independent Children’s Lawyer shall notify the Associate in Chambers and the Court will thereupon facilitate a discreet order confirming that the suspension of orders made today has been discharged and that orders made today shall have force and effect from a specified day being the date that the Court receives in chambers a sealed copy of the Singapore orders from the Independent Children’s Lawyer.
20.That the Mother and Father have agreed for the children to travel to Singapore for time with the Mother in the forthcoming school holiday period and for that purpose:
a.The Mother shall collect the children from after school on Friday 26 June 2015 and shall thereafter present the children to the Independent Children’s Lawyer at her office at [Suburb DD] in order for the Independent Children’s Lawyer to inform the children of the agreement reached today between their parents;
b.The Mother shall facilitate the travel of the children to Singapore of Monday 29 June 2015 with the children returning to Australia on Saturday 4 July 2015 so as to return to the Father’s care;
c.For the purposes of the children’s travel the Father shall deliver the children’s passports to the office of the Independent Children’s Lawyer by no later than 12 noon on Friday 26 June 2015; and
d.The children’s name be removed from the Airport Watch List forthwith.
21.The appointment of the Independent Children’s Lawyer be continued until such time as the current suspension of order made today is discharged as provided for above.
22.The outstanding Contravention application be listed for Judicial Case Management 15 September 2015 at 9:30am noting that parenting proceedings have been finally resolved today by the parties by agreement and that the Father may during the adjourned period consider filing a Notice of Discontinuance of that application and further noting that in the event that there is no appearance by or on behalf of the Applicant Father on the adjourned date the Contravention application will be dismissed.
IT IS FURTHER NOTED THAT:
A.The Mother proposes to enrol the child X Kava at the St Joseph’s International School in Singapore and that she will be primarily liable for the fees related to the child’s’ attendance at that school that are approximately $26,800 Singapore per annum.
The Law
The law as to the general principles applicable to a stay pending appeal is well settled.
In Aldridge v Keaton (Stay Appeal) (2009) FamCAFC 106, the Full Court said at [17]-[18]:
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) HCA 40, Gronow v Gronow (1979) HCA 63 at paragraph 18.
The principles to be applied in determining an application for 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) HCA 13, Alexander v Cambridge Credit Corporation (1985) 2NSWLR 685, Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited (1986) HCA 84, Clemett and Clemett (1981) FLC 91-013, JRN and KEN v IEG and BLG (1998) 72 ALJR 1329.
The Full Court then said at [18]:
The authorities stressed the discretionary nature of the application which should be determined on its merits. The principles relevant to this matter include the following:
·The onus to establish a proper basis for the stay is on the applicant 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 the child’s living circumstances;
·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 Full Court at [36] referred to K & B (2006) FamCA 848, stating:
The Full Court dismissed a stay appeal where it found that the arrangements which existed for the particular child at the time of trial were not satisfactory and, therefore, the maintenance of the status quo, pending the determination of the substantive appeal, was not in the child’s best interests.
The Full Court at [32] explained why, in a parenting appeal, the granting of a stay to maintain a status quo is not always appropriate or the best interests of a child may dictate refusal of a stay as appropriate. Their Honours said:
The granting or refusal of a stay involves an exercise of discretion by a trial judge. While such discretion must be exercised judicially in cases involving children, we accept that from time to time circumstances in existence at the date of the orders or which occur from the date of the orders until the hearing of a stay application, may be very relevant matters to be considered in the exercise of discretion in determining whether or not to grant a stay.
The interests of the children would not be promoted by an inflexible requirement or presumption in every case to maintain the status quo prior to the making of orders the subject of the stay application and to ignore unsatisfactory arrangements at the time of the orders or significant events which have occurred after the making of those orders.
In Clemett and Clemett (1981) FLC 91-013, Nygh J refused the husband’s application for stay of orders pending the appeal. His Honour said at 76,175:
In determining whether a stay should be granted, the welfare of the child is the paramount consideration. It is especially desirable for 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 in 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 of time.
In EJK v TSL (2006) FamCA 806, the Full Court had the opportunity of considering what was said by Nygh J, in Clemett (supra) in the context of the subsequent enactment of the Family Law Reform Act 1995 (Cth). The Full Court at [17] said this in relation to the principles espoused in Clemett (supra):
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 the granting or refusing of 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.
The Court now turns to consider the factors referred to by the Full Court in the decision of Aldridge & Keaton (supra) such as they are relevant.
The bona fides of the appeal
It is to be noted that upon final orders by consent being made the transcript reveals the following exchange:
HIS HONOUR: All right? Okay. All right. Thank you. Ms Goodsell, for your part, I certainly appreciate that over the last few days you have had a difficult journey, because your client is very keenly interested in the welfare of the children; probably almost to the extent that he is pretty hyperactive about the whole thing. But I think that over the period of the evidence, both parties, with the assistance of you for the father, and I think the ICL for the mother, have come to a very, very sensible solution. And I am glad that perhaps this will put an end to a long history of litigation between the parties. I am glad that I don’t need to deliver a judgment that might be written in the same terms as Judge Halligan in the Federal Circuit Court, because I can certainly say that if I was to write a judgment in this case, it would be, in some respects, still uncomplimentary of both of the parties, but, of course, deeply vested in considering the best interests of the children. I must say that my view – my preliminary view I expressed yesterday – has only been reinforced by hearing [Dr FF] today, and I think that may be one reason why you got some further instructions from your client, so I’m very grateful for that. So, [Mr Kava], he invites me to make these orders by consent?
MS GOODSELL: He does, your Honour.
HIS HONOUR: All right. Thank you.
MS GOODSELL: He does.
HIS HONOUR: All right. And, of course, Ms Mahoney, you also invite me to make these orders as well?
MS MAHONY: I do, your Honour. Thank you.
Following the pronouncement of orders the father sought to address the court and the following exchange took place:
HIS HONOUR: And could I just say this to [Ms Windsor] and [Mr Kava]: that I’m delighted that during the course of this trial you had both conducted yourself effectively in an exemplary way before the court. I had misgivings about what might happen because it happened to Judge Halligan, but I must say that I think that maybe you were worn out by the litigation. I don’t know, but you were certainly assisted by [Dr FF] and his evidence today, but I must say you both did conduct yourselves in a very exemplary way, and you’re both to be congratulated for that. I don’t know whether you’ve been able to smile at each other yet or even have a cup of coffee together, but that would be a really good idea if you could. I don’t suggest you resume cohabitation.
[MR KAVA]: Your Honour, can I say something.
HIS HONOUR: Notwithstanding - - -
[MR KAVA]: I don’t want to jump to the – miss my – I just wanted to say thank you, your Honour, for the last 16 months ..... and, honestly, I’m tired. I’m 47 now. I’m tired.
HIS HONOUR: Yes. Well, you’re going to have a much - - -
[MR KAVA]: Honestly, I love my kids, and my kids ..... [Ms Windsor] is part of the kids’ life, and also the kids is my life, so it’s another five years. The kids can make another decision.
HIS HONOUR: Yes, course they can.
[MR KAVA]: Yes.
HIS HONOUR: And I think, [Mr Kava], that your relationship, the nature of the relationship, is going to improve as this settles in.
[MR KAVA]: Sorry ..... Yes. I want to do the best for them.
HIS HONOUR: Okay. All right.
[MR KAVA]: And also I just want to say thank you for Ms Mahony for the - - -
HIS HONOUR: Her assistance on behalf of the children.
[MR KAVA]: Very good. Yes. Even some order is..... is very good.
HIS HONOUR: All right.
[MR KAVA]: Very good. And also we want to do a peaceful life.
HIS HONOUR: Yes. Well, it’s in the children’s - - -
[MR KAVA]: Yes.
HIS HONOUR: Thank you, sir. Have a seat. Thank you very much for that. I’m delighted. All right. Ms Mahoney and your instructor, thank you. It has been a difficult matter.
…
[MR KAVA]: And one more – sorry, your Honour, if I did something wrong. Sorry. Sorry.
HIS HONOUR: No. You’ve done nothing wrong.
[MR KAVA]: Yes. I just wanted to say sorry, your Honour. If ..... the last few months.
HIS HONOUR: That’s okay. You’ve run a case, and you’ve had your hearing, and now you’ve - - -
[MR KAVA]: Yes. And I don’t want to do that way.
HIS HONOUR: Now, the benefit you both have, if I can just say this, is that the children can now be told by the independent children’s lawyer that mum and dad have agreed to this arrangement. So this isn’t an order imposed by a cranky judge who’s never going to meet the children.
[MR KAVA]: ..... really good job.
HIS HONOUR: I can expect that [Ms EE] is going to be making it very clear to the kids that this is something that mum and dad have agreed on. The children will be delighted.
MS GOODSELL: They will be very relieved.
HIS HONOUR: And I would think instantly [X’s] relationship with his dad is going to improve straight away.
MS GOODSELL: Yes. I think that’s right.
HIS HONOUR: So the quicker you can get all this done, the quicker they can be sorted out. It would be useful, I suppose – I suppose that the Singapore long holidays are about to start. It would be great if they could perhaps end up at Singapore at the commencement of the new school term. All right. Well, thank you.
MS GOODSELL: Thank you, your Honour.
The Court is not satisfied that the appellant appeals as a consequence of his concern for the best interests of the children. He has consistently throughout the proceedings been obstructive in terms of the mother’s time with the children and generally. His contentions in the appeal are not supported by his own words at the conclusion of the proceedings and belie the time and detail reflected in the consent orders that went into the final resolution.
The father’s affidavit material focuses on the history between the parties and happenings after the consent orders were made. That material continues to demonstrate the conflict between these two parents and the father’s willingness to engage these young children in his conflict with the mother. However matters arising after the orders are a matter for the Full Court with leave.
There is a strong inference that the appeal has been filed in an endeavour to simply obfuscate or delay the ultimate resolution of these proceedings. This is indicative of the stay being refused.
Whether a stay should be granted on terms
It might be contended that a stay could be granted on terms as to the father’s expeditious prosecution of his appeal. He makes no such contention. The appeal process absent expedition may take 12 months or more. If allowed a rehearing would be inevitable. In this Registry that may be a further 6 to12 months.
In the interim should the children remain in his care the conflictual relationship to which they are exposed will no doubt continue. This is indicative of the stay being refused.
Whether there is a risk that the appeal may be rendered nugatory if a stay is not granted
The Court is mindful of the observations of the Full Court in Aldridge & Keaton (supra) that this is a substantial fact in determining whether it would be appropriate to grant a stay.
The children the subject of these proceedings were at the time of trial aged 11 and nearly 6. They have had have a substantial and significant relationship with each of the parents. The position is that the Court, at the making of the consent orders, was satisfied by reason of the evidence over the preceding two days that the proposed consent orders were in the best interests of the children. The orders were promoted and supported by the ICL. The parties represented to the Court that the orders were in the children’s best interests.
The father now takes issue with that premise. The circumstances are such that should there be a stay by reason of the appeal, it is likely that the children would remain in the care of the father for a prospective period up to the date of the resolution of the appeal which may be up to 12 months or more until judgment by the Full Court, absent expedition.
Thereafter there is always the prospect of the matter being remitted for rehearing depending upon the success of the appeal. That rehearing in this Registry may not occur for a further six months or so as an updated Expert Report would be required.
The children have lived substantially in the care of the mother since separation and that circumstance was confirmed by the orders of Federal Magistrate Halligan as he then was.
It was not until the interim orders made in these proceedings referred to above that both children commenced in the care of the father.
If the stay is not granted and the children move to live with the mother in Singapore subject to the requirement for mirror orders in Singapore the children would be in circumstances:
a)Supported by the ICL who opposes the stay;
b)Supported by the Single Expert;
c)Agreed to by the parties; and
d)Seen to be in the best interests of the children by the Court on making the orders by consent.
The children would spend time with the father in Singapore and in Sydney as provided for. His relationship with the children would continue in a significant way.
Should the father’s appeal be successful it would be the circumstance that the children would return, of course depending upon his then circumstances, to reside with him in Sydney and the mother would spend time with the children in Sydney and Singapore.
It is the Court’s view that there is no risk to the father’s appeal being rendered nugatory in the event that a stay is not granted. This is indicative of the stay being refused.
The grounds of appeal
In Charring & Bunt [2015] FamCAFC 149, Ryan J in dealing with an application in an appeal from consent orders said:
14. The fact that an order is made by consent does not make the order any different to an order made after a hearing. The order derives its force from the circumstance that it is a valid order made by the court in question, not from the agreement of the parties. Therefore, save for an important qualification, an order made by consent may be the subject of an appeal in the same way as any other order (Allan and Ors & Allanand Ors (2014) FLC 93-606 at 79,507, [2014] FamCAFC 162).
15. That “important qualification” is that the correctness of an order may not be appealed on its merits by a party who consented to the order. Rather, that party’s right of appeal is limited to vitiating grounds, such as fraud, mistake, fresh evidence or the absence of jurisdiction (Gilbert v Estate of Gilbert (1990) FLC 92-125 at 77-839).
Thus the father has more limited scope to succeed on appeal by reason of his consent to the final orders made.
It is appropriate to consider a preliminary assessment of the strengths of the appeal. This, of course, ultimately is a matter for the Full Court but the Court has before it a copy of the husband’s Notice of Appeal, which must be read in the context of the more limited scope of the grounds of appeal as discussed.
The Grounds in the Notice of Appeal were clearly settled by the husband himself.
Ground 1: “…I was duress and under pressure by my counsel to agree and sign of the minutes of orders …”
This ground can only be looked at in terms of the objective circumstances referred to above prior to the orders being made and the fathers own presentation to the court thereafter. It should also be considered in the light of the children’s best interests at the time reflected in the orders made. His complaint is not a vitiating circumstance but raises a professional conduct issue that can be dealt with elsewhere.
It is considered that the father’s prospects of success in this regard are poor.
Ground 2: “Failure of consent order from Associate Judge Foster from 19-22 especially about register the children to register the Guardianship of Infant Act in Singapore.”
This ground appears unintelligible. Although it may suggest that the orders have failed in that the mirror orders have not been made in Singapore, it is common ground that the father has simply refused to sign documentation to effect such a course.
Otherwise in what appears to be background detail to his Grounds of Appeal the father seems to take issue with various factual matters that were clearly before the Court prior to the orders being made and for his consideration before consenting to the orders.
No vitiating factor is asserted in this ground. Once again the father’s prospects of success are poor.
Ground 3: “Failure of ICL as Independent Children’s Lawyer by law to support the right party. Un-Fair, the decision made by ICL of consent order from order number 1-17.”
As best as can be gleaned this appears to complain that the ICL had at the end of the evidence formed a view and proposed orders that were ultimately agreed to by the parties and made by consent.
The ground has no bearing on whether the consent orders are vitiated by any circumstance. There appears no merit in this ground.
Overall a consideration of the grounds of appeal are indicative of a refusal of the stay.
Changes in the children’s circumstances
The next factor to be considered is the frequency of change in the children’s circumstances. The circumstances of the children prior to trial are referred to above. It is not the frequency of change during the history of the matter that is a matter of concern for the Court, but the frequency of change that may arise as a consequence of there being a stay or no stay granted in these proceedings.
That, of course, has to be dealt with in the context of the particular circumstances of the subject children, and that their best interests are, of course, the paramount consideration.
The circumstances are that the orders provide for the children to reside, subject to certain preconditions with the mother in Singapore.
It is clear from the consent orders that this Court, the ICL and the parties considered that the best interests of the children were served by the children, in circumstances that existed at the time of the hearing residing in the primary care of their mother in Singapore.
That circumstance is the preliminary starting point for a consideration as to whether the Court should grant a stay.
The father’s stay application would seek to have that the children’s present unsatisfactory circumstances continue for an indeterminate period of time but probably more than 12 months if the matter was remitted for re-hearing. This factor is indicative of the husband’s application being dismissed
Timing of the appeal hearing
The next factor is the prospective time in which the appeal can be determined.
This has been referred to in the matters considered above. After disposition of the appeal and should the father be successful in obtaining a rehearing then such a redetermination will in all probability in this Registry be about 12 to18 months from now.
Such a delay where the children’s best interests are a significant determinative factor is not indicative of a stay being granted.
Best interests of the children
The final consideration, and perhaps the most important consideration of all, is the best interests of the subject children.
The Court had the benefit of two days of evidence from the parties and evidence from the Single Expert in assisting it in concluding that the best interests of the children were met by the consent orders proposed and supported by the parties and supported by the ICL.
It is clear, in this Court’s view that it is in the best interests of the children, bearing in mind all of the matters referred to above, that the consent orders be implemented as provided therein and they move into the primary care of their mother without delay. This is indicative of the stay being refused.
Conclusion
The onus is on the applicant to demonstrate a proper basis for stay. He has not done so.
Accordingly, and having regard to all of the considerations referred to above, the Court in its discretion is not satisfied that the circumstances in this case warrant a stay being granted.
The Court orders that the applicant father’s application for stay is dismissed.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 13 August 2015.
Associate:
Date: 13 August 2015
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