YAU & LAC (No.2)

[2019] FCCA 535

FEDERAL CIRCUIT COURT OF AUSTRALIA

YAU & LAC (No.2) [2019] FCCA 535

Catchwords:
FAMILY LAW – Application for stay pending appeal to Family Court of Australia – final parenting orders – general principles considered – orders made – otherwise stay refused.

Legislation:

Family Law Act 1975 (Cth) s.117

Cases cited:

Aldridge & Keaton(Stay Appeal) [2009] FamCAFC 106

Applicant: MS YAU

Respondent: MR LAC

File Number: MLC 6445 of 2016

Judgment of: Judge Hartnett

Hearing date: 1 March 2019

Delivered at: Melbourne

Delivered on: 1 March 2019

REPRESENTATION

The Applicant: In person

The Respondent: In person

Independent Children’s Lawyer: Danielle Webb

ORDERS

1. The application in a case for a stay filed 16 January 2019 is dismissed.

2. The Applicant mother pay the costs of the Independent Children’s Lawyer in the sum of $950. There be a stay of 12 months.

IT IS NOTED that publication of this judgment under the pseudonym Yau & Lac (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6445 of 2016

MS YAU

Applicant

And

MR LAC

Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application in a case, filed by the Applicant on 16 January 2019.  The order as sought by the mother is:-

   “That the Honourable court stay the current orders made 21st Dec 2018, stopping their operation until the Family Court has made a decision regarding the application to appeal the said orders.”

2. The application was supported by an affidavit of evidence, affirmed by Ms Yau, on 14 January 2019. Ms Yau served the application in a case and affidavit upon the Independent Children’s Lawyer. Ms Yau asserted, but without any necessary evidence as to service, that she served by post her application and affidavit in support upon Mr Lac. Mr Lac indicated this day that he was only aware of the proceeding by looking at the Commonwealth Courts Portal, and that he had not been served with a copy of the application in a case and affidavit. Nevertheless, he was prepared to proceed, on the basis of being provided with a copy of Ms Yau’s affidavit at the commencement of the hearing; having an opportunity to read it; and an ability to make submissions in response to the claims and allegations as set out in Ms Yau’s affidavit.

3. Both the Respondent and the Independent Children’s Lawyer seek dismissal of the stay application. 

4. These reasons should be read with the reasons for judgment delivered on 21 December 2018 following the completion of the final hearing in these proceedings to provide context.

5. The Applicant’s affidavit evidence commences as follows:-

   a)Ms Yau affirms in paragraph 1 of her affidavit that the parties’ child, [X], born … 2006, has been “forced to run away from home five times since she was forced to stay with her father”; 

   b)further, that [X] “was forced to live on the streets and be homeless as she was deprived of her basic rights to safety and care at home.”

6. The father denies these allegations. [X] has, since final parenting orders were made on 21 December 2018, left his home on two occasions, requiring him to come before the Court on an application for a recovery order. On each such occasion, the recovery order was made and the child [X] was found to be in the care of her adult sister, Ms A. On each of those two occasions, the Department of Health and Human Services Child Protection (‘Child Protection’) was involved. On each of those two occasions, a Child Protection worker liaised with the Independent Children’s Lawyer in respect of the return of [X] to the care of her father.  In submissions made to the Court this day, Mr Lac submits that there have been no other occasions where [X] has left his care, and at no time has he ever “forced” her to leave his care or his home.

7. The mother’s allegation that [X] has been repeatedly subjected to domestic violence by her father is not borne out by the evidence before the Court on this stay application. The police have been involved in the return of [X] to her father’s care, as have Child Protection workers.  No protective concerns have been identified.

8. In respect of paragraph four of Ms Yau’s affidavit, the current factual scenario is that [X] is residing in Mr Lac’s care; is attending her school each day, before attending the library immediately after school for a period of time; and is progressing well at school. She has only not attended at school on the occasions when Mr Lac has taken her for appointments with her psychologist, and for a dental appointment check-up. She has not spent time with her mother in accordance with the orders of 21 December 2018, because her mother has considered the cost of supervision to be too great. This is despite the Independent Children’s Lawyer providing to each of the parties, on 9 January 2019, application forms for time spent with between the mother and child to commence at the … Contact Service, where the costs to the parties would be minimal. The mother has not completed an application and the father has not likewise. The father’s reason for so doing is that he claims to have been told by Contact Service that the mother had indicated to that Contact Service that she cannot afford to engage them and, the inference was, would not be proceeding. It has again been reiterated to the parties this day that the costs for them of such supervision will be minimal and that it is imperative that they send in their application forms, so that process can be commenced. None of these matters are particularly challenged by the Applicant.

9. The Respondent submits he is encouraging of the relationship between [X] and Ms A and has, in support of that relationship, invited Ms A to his home, but she has declined. He submitted that he had discussions with Ms A about [X] staying with her sister, at her sister’s home, over a weekend. Those discussions have not resulted in [X] spending that time with her sister, because the conditions that the Respondent required, namely that there be no denigration of him or his wife in the presence and/or hearing of [X], and that there be no time spent with between [X] and the mother, in contravention of the current orders, were not conditions that Ms A was prepared to meet. Of course the Court has no evidence from Ms A about these matters and so makes no definitive findings. But the approach of the Respondent is consistent with that which he earlier disposed to under oath.

10. The Applicant, in paragraph six of her affidavit, repeats that which she has often said, that [X]’s contact with her father should be on a voluntary basis. The Court simply refers to its earlier extensive reasons for judgment as to why that was not seen to promote [X]’s best interests. 

11. The applicable principles relating to a stay pending appeal application are as set out in Aldridge & Keaton(Stay Appeal) [2009] FamCAFC 106. There the Full Court of the Family Court of Australia said, relevantly, in the context of these proceedings, that:-

    a)the onus to establish a proper basis for the stay was on the Applicant for the stay. However, it was not necessary for the Applicant to demonstrate any “special” or “exceptional” circumstances;

    b)a person who has obtained a judgment is entitled to the benefit of that judgment;

    c)a person who has obtained a judgment is entitled to presume the judgment is correct;

    d)the mere filing of an appeal is insufficient to grant a stay;

    e)the Court should consider the bona fides of the Applicant.

12. As to the other relevant matters to be considered in this type of proceeding, the Court notes the best interests of [X] are a significant consideration, and it is desirable to limit the frequency of any change in [X]’s current living arrangements.

13. The Court was not informed by either of the parties as to when the appeal would be heard. There is no current risk to [X] in remaining in the residence of her father. I accept that the Applicant is very distressed by the outcome of the proceedings, but it is difficult to understand why she has not acted to ensure that she spends time with [X] in accordance with the orders, rather than spend no time at all, or time that may have occurred on one or two occasions in possible breach of the orders. I make no finding in that regard.

14. This is a discretionary matter for the Court, and the Court determines that the application of the Applicant should be dismissed. The evidence which she presents to the Court does not provide a proper basis for a stay.

15. An application for costs was made by the Independent Children’s Lawyer. The Court considered those matters, pursuant to s.117 of the Family Law Act 1975 (Cth), and determined that a costs order was appropriate as against the Applicant, but that there should be a stay of 12 months on such order, to enable the Applicant to acquire the necessary funds. The Applicant’s submissions as to her current financial circumstances are that she is on Centrelink benefits, (so she has minimal income), and that otherwise she has a home with a value of approximately $500,000; a mortgage of approximately $100,000; and other secured debt of approximately $700,000. It is not accepted as plausible by the Court that the Applicant would have a debt of some $800,000 secured over a home valued at approximately $500,000. Victoria Legal Aid has expended considerable funds in these proceedings. The application by the Independent Children’s Lawyer is one in circumstances where the application in a case has been dismissed and where there was little evidence to support that application. In the exercise of the Court’s discretion as to costs, the Court will make the order as sought by the Independent Children’s Lawyer.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 7 March 2019