Withers & Russell (No 2)
[2022] FedCFamC1F 488
Federal Circuit and Family Court of Australia
(DIVISION 1)
Withers & Russell (No 2) [2022] FedCFamC1F 488
File number: CAC 223 of 2015 Judgment of: GILL J Date of judgment: 11 July 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the father has applied for a stay pending appeal of first instance judgment – Where children are to shortly relocate from Australia to USA – Where consideration is given to the further disruption caused by a stay in the proceedings – Application refused Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.12 Cases cited: Aldridge & Keaton [2009] FamCAFC 106
Bugmy v The Queen (2013) 249 CLR 571
House v The King (1936) 55 CLR 499
Sheldon v Weir (No 4) [2010] FamCA 1214
Sheldon v Weir [2011] FamCA 2
Division: Division 1 First Instance Number of paragraphs: 58 Date of hearing: 11 July 2022 Place: Canberra Counsel for the Applicant: Ms Tabbernor Solicitor for the Applicant: Unified Lawyers Counsel for the First Respondent: Mr Haddock Solicitor for the First Respondent: Parker Coles Curtis Solicitor for the Second Respondent: Self-Represented Solicitor for the Independent Children’s Lawyer: Jeanine Lloyd & Associates ORDERS
CAC 223 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR WITHERS
Applicant
AND: MS RUSSELL
First Respondent
MS RUSSELL SNR
Second RespondentINDEPENDENT CHILDREN’S LAWYER
order made by:
GILL J
DATE OF ORDER:
THE COURT ORDERS THAT:
1.The applicant’s Application in a Proceeding insofar as it seeks a stay of orders made on 26 May 2022 is refused.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Withers & Russell is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
INTRODUCTION
This matter concerns an application for a stay pending appeal of orders that fundamentally alter the care and living arrangements of two children: A born in 2009 (“A”) and B born in 2011 (“B”) (collectively “the children”).
There are three parties in these proceedings: the applicant father, Mr Withers, the respondent mother, Ms Russell, and the second respondent maternal grandmother, Ms Russell Snr. An Independent Children’s Lawyer (“ICL”) was appointed on behalf of the two children of the applicant and respondent.
The children currently reside with the father within the Australian Capital Territory (“ACT”).
Following lengthy litigation, including a final hearing conducted between 22–26 February, and 1–2 March 2021, Final Orders were delivered by me on 26 May 2022 (“the Final Orders”). Those final orders reversed the position arrived at by Watts J in September 2016 when he determined that the children would live with the father in Australia and spend time with the mother, who lived in the United States of America (“USA”), such that the children will, as a result of the appealed orders, now live with the mother in the USA and spend time with the father who lives in Australia.
The mother now has sole parental responsibility for the children and, on and from the last Sunday of the July 2022 school holidays in the ACT (being 17 July 2022), is permitted to permanently relocate them to the USA.
The father filed a Notice of Appeal on 23 June 2022 against the final orders.
Shortly after the father filed an appeal, he filed an Application in Proceedings on 1 July 2022 seeking that the Final Orders be stayed pending the outcome of the appeal. Although at that stage he also sought orders that would have had the effect of restricting the overseas travel of the children, thus restricting even the time that would have been available for the mother under the Watts J orders, he did not pursue such relief at the hearing. He also seeks costs.
The mother opposes the stay, and seeks costs.
The mother has also sought orders to facilitate the implementation of the orders by securing passports for the children. That issue will be dealt with separately to this judgment.
Legal principles
Rule 13.12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“FCFCoA”) deals with an application for a stay in the following terms:
13.12 Stay
(1) The filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision
(2) If an appeal has been started, or a party has applied for leave to appeal against an order, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application relates.
(3) An application for a stay must:
(a) be filed in the registry in which the order under appeal was made; and
(b) be heard by the Judge or Magistrate who made the order under appeal, unless that judicial officer is unavailable.
Note: Under subsection 55(3) of the Family Law Act, a divorce order is stayed until after an appeal against it is determined or discontinued.
In this case an appeal has been started, as of right, within the relevant appeal period, and the application has been filed in the correct registry, with the stay being listed before the trial judge.
A stay is not an automatic consequence of the lodging of an appeal. The decision whether to grant a stay is discretionary[1] and is reliant upon the circumstances of the individual case. The principles governing the exercise of the discretion have been set out in cases such as Aldridge & Keaton,[2] where the Full Court said:
[1] Sheldon v Weir (No 4) [2010] FamCA 1214 at [39].
[2] [2009] FamCAFC 106.
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 ConstructionLimited 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.
In terms of weighing, on a preliminary basis, the strength of the case, the exercise has been described as the forming of a “judicial impression” focussed on whether the appellant has an arguable case, rather than an occasion for the detailed analysis of the issues.[3]
[3] Sheldon v Weir [2011] FamCA 2 at [77].
MATERIAL RELIED UPON
Directions were given on the listing of the matter requiring the mother and the maternal grandmother to file a response and any supporting affidavit by 10.00 am on 8 July 2022 in order to allow the stay application to be heard in a timely manner given the short period before the children are currently due to leave Australia. The mother complied with the directions. The maternal grandmother did not. The maternal grandmother was not permitted to rely upon her affidavit which, in any event, added little to the material advanced by the mother.
The parties relied upon the following material on the hearing of the stay application.
Applicant Father
(a)Application in a proceeding filed 2 July 2022;
(b)Affidavit of applicant father filed 2 July 2022.
Respondent Mother
(a)Response to an application in a proceeding filed 8 July 2022;
(b)Affidavit of respondent mother filed 8 July 2022.
Factual contentions raised
The material relied upon by the parties raised the following factual matters.
The key contentions raised by the father in his affidavit were firstly, that there is a risk that the mother may not return the children from the USA if he is successful in his appeal. He contended that this would result in further proceedings related to the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), observing that he has previously been forced to have recourse to the Hague Convention mechanisms to have the children returned from the USA. This was despite identifying no prior occasion of default in compliance on the part of the mother in returning the children as provided for in Watts J’s orders.
The second contention related to the impact upon the children if they were to move to the USA pursuant to the appealed from orders in the event that the appeal is successful, contending that the children have already experienced upheaval and uncertainty in their parenting arrangements since 2015. The father asserted, in support of this ground that the children are settled in their current school arrangements.
In addition to a number of petty complaints against the father, the key contentions raised by the mother in her affidavit pertained to, firstly, an expressed desire on the part of the children to be with her, coupled with criticism and/or hostility toward the father, in a manner echoing the substance of the trial.
Secondly, the mother asserts deficiencies in the current parenting of the children and asserts that they are not well settled in school, pointing to various criticisms made by A of her school.
Thirdly, she points to each class having farewelled the children in contemplation of their move to the USA, to each child no longer being enrolled and to asserted poor performance by the children demonstrated by their reports. As to poor performance, it should be observed that the reports do not, on their own, demonstrate that there has been a degradation of the children’s performance at school. There is, however, demonstration of missed school by the children.
Further, the mother records criticism by the children of the time that the father has (not) spent with them following the making of the orders, and described that the children have caught the COVID-19 virus, that the father has not communicated with her regarding such, and that child A has had her first period.
Fourthly, the mother points to arrangements made and expenditures incurred in preparation for the children’s return, including procuring teachers for the children, obtaining health insurance, enrolling the children at school, arranging holidays and for the collection of the children in Australia. In particular, the mother points to the children missing the start of the USA school year on 15 August 2022, and missing the family holiday that has been arranged with her husband and his children if they are delayed by a stay being granted.
Fifthly, the mother points to the father acting in accordance with the appealed from orders, in respect of the exercise of time in the current school holiday period. She describes that he has made representations consistent with the children moving to the USA in accordance with the appealed from orders, including, implicitly, assisting the children to prepare for the move.
Sixthly, the mother observed that the father has identified no thoughts about how he might deal with the sudden frustration of the children’s anticipated move.
Seventhly, the mother complains as to delay in the father pursuing the stay, he having not lodged an appeal until the final day of the appeal period and then delaying a further nine days prior to applying for the stay. This has left his application only a short time before the delayed departure provided for in the appealed from orders.
The maternal grandmother echoed the mother’s complaints, in particular emphasising the children’s expectations of moving.
The ICL did not support the father’s application for a stay. She emphasised, that the father’s approach, and absence of consideration of how he might deal with the children’s frustration and disappointment should a stay be granted, was indicative of a deficiency in his capacity to care for the children. She asserted that the mother’s plan for the children’s transition appeared to be child focussed, and that allowing the move, even if the children ultimately have to return, was the preferable outcome.
Discussion
This is a discretionary determination made in the context that the mother, who has secured a judgment in her favour, is entitled both to presume that the judgement is correct and to the benefits of the judgment. The father bears the onus of establishing proper grounds to justify the grant of the stay that he pursues.
Of particular importance is the prospect of disruption to the children in the event of a successful appeal. This assessment should be analysed in the light of the likely timetable for the hearing of the appeal.
At present, appeals lodged in June 2022 are being listed for hearing in August 2022. This points to strong potential for the appeal in this matter to be heard as early as September or October 2022. While there would be some delay awaiting the delivery of judgment, it may be anticipated that this would occur within a further three months. Accordingly, if a stay were granted but the appeal was unsuccessful, the children’s relocation to the USA would be only briefly delayed. Such a delay carries with it, however, the consequence that they would miss the start of the school year, and also the family holiday planned for them.
Such a delay would also occur in the context of the children having been prepared for their imminent departure by the father, in packing, in their visiting relatives prior to departure, in the paternal family preparing a picture book for the children containing photos of the family for the children to take. It would occur in the context that the children have already been farewelled from their schools, returned their school equipment, and had their enrolments terminated.
Conversely, if a stay were not granted and the appeal is successful, the children face the prospect of removal from their current home, a short period of adjusting to their new home in the USA, and new schools, before being removed back to Australia to resume life in their current home.
It may be observed that either a delay by a stay, or a return following a successful appeal, is disruptive.
It might be thought that failing to grant a stay in the context of a successful appeal is potentially more disruptive to the children.
In addition to the disruption issue, in considering the best interests of the children, the key issues in the trial that pointed to the change occurring are further exemplified in the mother’s description of the children’s comments, as reflective of their desire to be with the mother in the USA.
The father pointed to whether the appeal would be rendered nugatory if there was no stay. In particular, he raised a concern that the mother may not comply with a requirement to return the children, rendering it necessary for him to access courts in the USA, via a Hague Convention mechanism, to secure their return. As was noted in the primary judgment, non-compliance is an ongoing risk, and it may be the case that the Hague Convention mechanisms are not available, although it may be expected that other mechanisms involving the transmission and registration of orders are available.
Although the mother argued that her compliance with orders meant that there was no such risk, as noted in the judgment appealed from, the context of that compliance involved the availability of the Hague Convention mechanisms that had previously been successfully invoked against her.
There remains some risk of non-compliance undermining the effectiveness of a successful appeal by the father, although it falls short of going so far as to render a successful appeal nugatory, as opposed to potentially temporarily obstructed in effect.
In considering whether a stay should be granted, attention should be directed to the strength of the grounds pursued by the father on appeal.
I acknowledge that at this stage of the proceedings, where there has not been full argument, or reference to the transcript, and where the task is to form a judicial impression as to arguability, some circumspection is called for in assessing that appeal grounds are lacking in merit. However, in this instance my impression is that the grounds do not show that there is strength in the appeal.
Grounds 1, 2 and 3a appear to be primarily directed to the application of the principles contained in Rice v Asplund,[4] while ground 3b generically asserts error in rejecting the father’s case. Grounds 4a, b and c assert error in the attribution of weight, while Ground 4d appears to assert error in fact finding in relation to risks of self-harm and trauma facing the children, whilst Ground 5 asserts deficiency in the reasons given.
[4] (1979) FLC 90-725.
As to the Rice v Asplund,[5] grounds, where the circumstances identified in the judgment led to the conclusion that there needed to be a fundamental change in the arrangements of the children based on the events that have occurred since the judgment of Watts J it is difficult to conceive of any possibility of merit in a challenge based upon Rice v Asplund.[6]
[5] (1979) FLC 90-725.
[6] (1979) FLC 90-725.
I raised this issue with counsel who (if I understood her correctly) suggested that the Rice v Asplund,[7] point arises on the basis that I misconstrued the father’s position. It was suggested that due to the father’s prior pursuit of orders I had considered that Rice v Asplund,[8] was inapplicable. I observe that this was not the manner in which I substantively dealt with the Rice v Asplund,[9] issue in the discussion. I acknowledge in making that submission that counsel was not responsible for the drafting of the grounds, was hamstrung by not having access to transcript and not having been involved in the trial.
[7] (1979) FLC 90-725.
[8] (1979) FLC 90-725.
[9] (1979) FLC 90-725.
As to Ground 3b, the assertion of generic error in rejecting the father’s case does not appear to identify a ground of appellate review as identified in House v The King,[10] as opposed to a mere complaint as to the result.Similarly, as confirmed by the High Court in Bugmy v The Queen,[11] (particularly at p588), attacks based on weight attribution as seen in grounds 4a, b and c do not form a basis for appellate interference.
[10] (1936) 55 CLR 499.
[11] (2013) 249 CLR 571.
As to Ground 4d, which asserts a failure to properly assess, and the making of inconsistent findings as to risk of harm, the generalised nature of the ground does not assist in establishing that the ground is arguable.
As to Ground 5, the challenge as to inadequacy of reasons for the parenting orders does not appear to be arguable as the judgment discloses how the result was arrived at by reference to the issues pursued in the trial.
In their current state, I am unable to identify that any of the grounds are arguable.
I accept, as suggested by counsel for the father, that the grounds may be amended as of right until the filing of the Outline of Argument. However, the grounds as currently expressed form the only basis on which the strength of the appeal can be assessed.
Conclusion
The judgment appealed from was directed to the arrangements that are in the best interests of A and B and, in particular, alleviating risks flowing from their current circumstances, and flowing from the frustration of their views, being deeply held views that they want to live with the mother.
In that context, the children may be anticipated to have strong expectations that they are about to travel to the USA with their mother in accordance with the judgment, they having made preparations for the travel with, seemingly, appropriate support from the father. It may be accepted that the sudden frustration of that process, where the children have already been farewelled from their schools, packed, and been in the process of farewelling the paternal family, is likely to be highly disruptive and frustrating to them.
Further delay in the children’s move to the USA carries with it the prospect that the children will be unable to commence the new school year in their new schools with their new cohort of students, and face the prospect that if they are able to join the schools post any appeal (in up to five months time), that they will do so well into the school year. It might be supposed that this will render their integration more difficult. Further, they will not have the benefit of the holiday with the mother, her husband and his children, that has been planned as a part of their managed transition into the mother’s household.
The orders that provide for the move to live with the mother are the subject of appeal. They are presumed, however, to be correct, and the mother is presumed to be entitled to the effect of the orders. The grounds of appeal arrayed against that judgment and those orders are apparently weak, doing little to push against those presumptions. They, at present, do not indicate with any strength that the orders currently in place are defective or fail to follow the requirements for decision making in the children’s best interests.
The father correctly identifies that the children face significant disruption should they move now, and be required to return following a successful appeal. Given the assessment of the grounds of appeal, the prospects of such effects occurring do not appear to be strong. I accept that there is some risk that there will be issues with the mother’s compliance with orders requiring their return.
It is with particular focus on the well-being of the children that consideration is to be given to these different factors in determining whether to grant the stay. The balance here falls to declining to grant the stay. The children face disruption and frustration whether a stay is granted, or not granted and an appeal is successful. The prospects of a successful appeal, weighed into that mix, appear at present limited, while the disruption and frustration and difficulties associated with a delayed departure are significant. These consequences of granting a stay are sufficient to weigh against the granting of such relief.
The father’s application for a stay is refused.
ORDERS SOUGHT
From the applicant father’s Application in a Proceeding filed 2 July 2022, he is seeking:
(1)That short service be granted.
(2)That this application be listed for a date before 17th July 2022 before his Honour Justice Gill.
(3)That pursuant to Rule 13.12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the Orders of his Honour Justice Gill made on 26 May 2022 be stayed pending the outcome of the appeal bearing the Court File Number NAA 139/2022 and with the following conditions:
(a)That within 48 hours of the date of these orders, the Father is to apply for an expedition of the Appeal.
(b)That until further order each party, Ms Russell, Mr Withers, Ms Russell Snr and their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said children A born in 2009 and B born in 2011 from the Commonwealth of Australia pending the determination of the Appeal.
(c)AND IT IS REQUESTED that the Australia Federal Police give effect to this order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist for the said period, or until the Court orders its removal.
(d)That pending the determination of the Appeal, the Mother is at liberty to spend time with the children in Commonwealth of Australia per the orders of His Honour Justice Watts dated 20 September 2016
(4)That in the event the Application is not acceded to, the Respondents pay the costs of and incidental to this Application on a party-party basis as agreed but failing agreement, as assessed.
From the respondent mother’s Response to Application in a Proceeding filed 8 July 2022, she is seeking:
(1)That the Orders sought by the Applicant Father in his Application in a Proceeding filed on 1 July 2022 be dismissed and that this Honourable Court refuses to stay the Orders made by His Honour Justice Gill in the Federal Circuit and Family Court of Australia (Division 1) on 26 May 2022 (“final Orders”).
(2)That the Applicant Father shall do all acts and things and sign all documents required to make the children available to the First Respondent Mother at 2:00pm on 17 July 2022 at Sydney International Airport including delivering the children to the First Respondent Mother at Sydney International Airport at 2:00pm on 17 July 2022 and handing to the First Respondent Mother a valid passport for each of the children.
(3)To facilitate the implementation of Order 3, and within 24 hours of the date of these Orders, the Applicant Father shall do all acts and things and sign all documents necessary and pay all fees required as is necessary, including but not limited to:
(a)Withdraw any application filed to date by the Applicant Husband for the children’s passports to be renewed if those applications were filed on a non-urgent basis.
(b)Lodge an urgent application to renew child A’s and/or child B’s respective passports at an Australian Rapid Location or, if necessary, the Australian Passport Office located at Level 1, 44 Sydney Avenue, Barton such that any valid passport that is required for the children is issued urgently.
(c)That the Applicant Husband shall be at liberty to provide a copy of these Orders and the final Orders to the Australian Passport Office and/or Australia Post in support of any urgent application required to be lodged to renew the children’s passports and for those passports to issue urgently.
(4)Any such further Order that this Honourable Court deems fit.
(5)That the Applicant Father pay the First Respondent’s costs of and incidental to this Application by the First Respondent.
I certify that the preceding fifty eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 11 July 2022
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