ZAHUR & BOYLE
[2018] FamCA 285
•3 May 2018
FAMILY COURT OF AUSTRALIA
| ZAHUR & BOYLE | [2018] FamCA 285 |
| FAMILY LAW – PROCEDURAL – Where the father makes an application for an adjournment under s 57 Legal Aid Commission Act 1979 – Where there are special circumstances in this case which prevent the court from granting the father’s application for adjournment – Where the application for an adjournment is dismissed. FAMILY LAW – PROCEDURAL – Where the father makes an application for a stay of final parenting orders that allow the children to temporarily relocate outside Australia – Where the father has failed to comply with an order to file a Notice of Appeal and an application for expedition of that appeal – Where the application for a stay is dismissed. FAMILY LAW – PARENTING – Where the mother has an order for sole parental responsibility – Where the mother and the Independent Children's Lawyer seek consequential orders in respect of Country I passports for the children – Where the orders sought by the mother and the Independent Children's Lawyer are in the children’s best interests. FAMILY LAW – PARENTING – Where the mother and the Independent Children's Lawyer seek an order changing a provision in the final orders to defer the timing of the children’s first block period back in Australia with their father – Where the mother did not leave Australia immediately because of notification relating to her becoming an Australian citizen – Where that constitutes a significant change in circumstances – Where it is otherwise in the best interests of the children to vary the order as sought. |
| Family Law Act 1975(Cth) Legal Aid Commission Act 1979 Family Law Rules |
| Rowell & Keogh [2011] FamCAFC 74 |
| APPLICANT: | Mr Zahur |
| RESPONDENT: | Ms Boyle |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Lloyd |
| FILE NUMBER: | CAC | 429 | of | 2014 |
| DATE DELIVERED: | 3 May 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 30 April 2018 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Litigant in person |
| SOLICITOR FOR THE RESPONDENT: | Litigant in person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Jeanine Lloyd & Associates |
Orders
(orders made 30.4.18)
Leave granted to the father to make an oral application for an adjournment of proceedings today on the basis that he relies on s 57 Legal Aid Commission Act 1979. I find that there are special circumstances that prevent me from giving that adjournment application. I reserve my reasons for that decision.
The father’s application filed 4 April 2018 for a stay of the orders made 29 March 2018 be dismissed.
The father sign all documents and do all things to enable B born … 2005 and C born … 2006 (“the children”) to obtain Country I passports and within 24 hours of him receiving any papers from the mother , for that purpose, he is to complete and sign those papers or documents and return them to the mother by delivering them to Suburb T Police Station for collection by the mother.
In the event the father refuses or neglects to sign any documents necessary to effect the terms of Order 3, the Registrar of the Canberra Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of the father.
Order 8.1 made 29 March 2018 have deleted from it “2018” and have inserted “2019”.
I reserve my reasons for making these orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zahur & Boyle has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: CAC 429 of 2014
| Mr Zahur |
Applicant
And
| Ms Boyle |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
In this case the mother has sought orders to allow her to temporarily relocate to Country H with the children aged 12 and 13 to live with her de facto partner who is on secondment there. Litigation about whether or not the mother can go and live with her de facto partner in Country H with the children has been ongoing since late 2016. Justice Gill heard the matter for three days in March 2017. The effect of his orders was to prevent the children going to Country H with their mother. The Full Court upheld an appeal against those orders and remitted the matter for a rehearing which took place between 19 and 21 March 2018. Orders were made on 29 March 2018 which permitted the children to relocate with their mother to Country H.
On 4 April 2018 the father filed an Application for a stay of those orders. That matter was listed before me on 12 April 2018. At that time the father had not lodged an appeal against the orders although his affidavit set out the grounds of appeal which he wished to raise.
On 12 April 2018 I made the following orders and notations:
1. The father’s application for a stay is adjourned for hearing on 30 April 2018 at 2.15pm by telephone and until that time order 6 made 29 March 2018 is temporarily stayed. To participate in this listing by telephone please dial … and at prompt enter password … .
2. Within 7 days the father file his Notice of Appeal and serve it on the mother and the Independent Children's Lawyer and forward a copy by email to my associate. The father is also to make an application to the Full Court for expedition of the appeal.
3. I note the father has foreshadowed that he intends in the appeal to seek leave to rely upon further evidence. If he is making that application to the Full Court he should also file that application to the Full Court within 7 days.
4. I note the mother wishes to put before me evidence on the father’s stay application going to issues as to the balance of convenience and within 14 days the mother should file and serve that evidence.
5. The father is to file and serve evidence about information he is provided by the Appeals Registry as to when it is likely an expedited appeal might be heard and determined.
6. The mother’s application in relation to Country I passports is adjourned for hearing on 30 April 2018 and her application to vary the order I made in relation to this year’s northern hemisphere summer holidays is also adjourned to 30 April.
7. I note the Independent Children's Lawyer will oppose the stay application at the hearing on 30 April 2018.
8. I note it is the parties’ joint expectation that the children will be with their father from 3pm 20 April 2018 to 5pm 27 April 2018. The understanding is the mother will deliver the children to Suburb T Police Station at the commencement of the time and the mother will pick the children up from the father’s home at the conclusion of their time with the father.
After a further hearing on 30 April 2018 I made the following orders:
1. Leave granted to the father to make an oral application for an adjournment of proceedings today on the basis that he relies on s 57 Legal Aid Commission Act 1979. I find that there are special circumstances that prevent me from giving that adjournment application. I reserve my reasons for that decision.
2. The father’s application filed 4 April 2018 for a stay of the orders made 29 March 2018 be dismissed.
3. The father sign all documents and do all things to enable B born … 2005 and C born on … 2006 (“the children”) to obtain Country I passports and within 24 hours of him receiving any papers from the mother, for that purpose, he is to complete and sign those papers or documents and return them to the mother by delivering them to Suburb T Police Station for collection by the mother.
4. In the event the father refuses or neglects to sign any documents necessary to effect the terms of Order 3, the Registrar of the Canberra Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of the father.
5. Order 8.1 made 29 March 2018 have deleted from it “2018” and have inserted “2019”.
6. I reserve my reasons for making these orders.
Having reserved my reasons in relation to these orders made on 30 April 2018, I now provide them.
THE HUSBAND’S APPLICATION FOR AN ADJOURNMENT UNDER s.57 LEGAL AID COMMISSION ACT 1979
The father sought an adjournment of his application for a stay on the basis that he orally asserted that he had an extant appeal from a refusal of an application for legal aid he had made to Legal Aid NSW.
Section 57 of the Legal Aid Commission Act 1979 is in the following terms:
Where it appears to a court or tribunal, on any information before it:
(a) that a party to any proceedings before the court or tribunal:
(i) has appealed, in accordance with section 56, to a Legal Aid Review Committee and that the appeal has not been determined, or
(ii) intends to appeal, in accordance with section 56, to a Legal Aid Review Committee and that such an appeal is competent,
(b) that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and
(c) that there are no special circumstances that prevent it from doing so,
the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit.
The Full Court in Rowell & Keogh [2011] FamCAFC 74 held that s 57 of the Legal Aid Commission Act created a presumption that an adjournment will be granted unless there are “no special circumstances that prevent it from doing so”.
The question that arises on the facts in this case is whether there are “special circumstances” that prevent an adjournment of the proceedings. The Full Court at [40] adopted as a definition of “special circumstances” as reflecting a requirement of a distinguishable feature.
The father informed the court orally that sometime after 12 April 2018 (I don’t know how long after) he had made an application to Legal Aid NSW for funding for a lawyer to represent him on his proposed appeal to the Full Court. The father further orally indicated that on approximately Monday 23 April 2018 he was informed by Legal Aid NSW that his legal aid had been refused. The father asserted (and I have no documentary corroboration of this) that Legal Aid NSW had refused his application based on means but not based on merit. The father asserted he either had or he intended to appeal the decision (again I have no documentary corroboration of what the father has done).
The father at the time of the trial, and it appeared up to the current date, maintained his occupation.
The father said however that he was able to obtain legal aid apparently for the first appeal and for the hearing before myself in March 2018.
The father further asserted that as a result of his health, he will no longer be able to work, will go on Government benefits and therefore will qualify for legal aid by the time his legal aid appeal is dealt with.
In support of that contention, the father emailed to the court a discharge summary from L Hospital, ACT which indicates that he attended an emergency department on 28 April 2018 at 23:44:00 and was discharged home on 29 April 2018.
The discharge summary indicates that the father presented with left side chest pain and dyspnea since 5pm on Saturday. He described the pain as “tingling”, radiating to the left shoulder, not improving with GTN spray and 5/10 in severity. Associated with dyspnea he presented with a headache, light-headedness, palpitations but nil diaphoresis, fevers, cough, recent travel, history of DVT/PE or recent immobilisation. The father confirmed that he was advised he had not suffered any heart attack but was suffering from the non-related issue of gastritis (which is the inflammation of the stomach lining that can present in pain in the upper abdomen, just under the ribs). That is consistent with the discharge diagnosis. It is not possible for me to make any conclusion from the results of that document as to the father’s assertion that he will be compelled to cease to have an earning capacity as a result of his health. The father asserts he has other health issues but I have no medical evidence to support the father’s contention that he will have to give up work.
The father’s attendance at the emergency department and the symptoms described are almost identical to the attendance described in the reasons for judgment of 29 March 2018 at [185] and [186].
The father appeared in person by telephone on 12 April 2018. On 30 April 2018 he confirmed that he had understood that I made an order that he had to file within seven days of 12 April 2018, his Notice of Appeal; an application to the Full Court for expedition and any application that he wanted to make to the Full Court to rely upon further evidence. That is, he was required to do those things by 19 April 2018. He failed to do so. Had it not been for the order I made the normal time for him to file an appeal expired 28 days after 29 March 2018, namely 26 April 2018.
So, the father had failed to comply with the orders upon which the temporary stay of the orders allowing the children to leave Australia was based.
More importantly, however, is the current situation of the mother and of the children.
The father’s failure to comply with the order to make an application for expedition to the Full Court compromises the timing of their plans to leave Australia.
The mother had a window of opportunity to leave the country with the children between the date the judgment was delivered and the date the father made his application for a stay. She did not do so because on 29 March 2018, the day the judgment was delivered, she received notification that she was to become an Australian citizen in May 2018. For that reason she has delayed her departure but made significant arrangements to be able to leave Australia with the children at the end of May.
Those arrangements include:
22.1.The mother has terminated her employment, and her final day is on 18 May 2018;
22.2.The mother’s tenancy will end on 24 May 2018 after which she and the children will be without accommodation; and
22.3.Shortly after the mother plans to leave Australia with the children, the mother’s family is planning a reunion in Country I, with all of the mother’s seven siblings and grandchildren gathering due to the maternal grandfather’s failing health
The mother also gives evidence orally and in her affidavit of the children’s distress. She states in her affidavit of 26 April 2018 that the children had “screamed and jumped with excitement” when they were told about the recent relocation decision but became emotional and angry after they heard of their father’s plans to appeal.
The mother orally indicated that the children are very angry and upset and she is stressed by the fact that she is the one who has to try and explain to the children why court orders may not be implemented.
On 4 April 2018 the children happily went with their father, in accordance with the orders, for the first time since Christmas Day 2017. At this time the children were aware of the orders allowing them to go but unaware of the father’s intention to seek a stay and appeal those orders. The mother says that while the children were with their father they had asked him whether they could return in the July 2019 holidays (instead of July this year) and that he had said he “would think about it”. The mother says that C had told her that the father had laughed at her when she tried to explain her anxiety surrounding the long haul flight.
The father gave a different version of this event orally in submissions. His version was that the children received a telephone call from their mother and shortly after, commenced to interrogate him as to whether or not he was prepared to agree to change the 2018 northern hemisphere summer holidays to 2019.
As I noted in my orders of 12 April 2018, it was anticipated that the children would spend a week with their father in the term 1 school holidays between 20 and 27 April 2018. The mother explains in her affidavit that she had delivered the children to the meeting point to be picked up by their father. By this time the children had become aware of the father’s appeal against the orders allowing them to go. The children approached their father’s car and the mother says that B then asked her father through the window, “Are you stopping us again from going Dad?” B told her mother that the father responded by saying, “I have the right to appeal like your mother did”. The mother says that B became very angry and annoyed at her father’s response and the children walked away from the car. The father drove away in the opposite direction.
This is illustrative of a similar pattern of behaviour displayed by the children since Gill J’s orders in the past (apart from the occasions referred to in the Reasons of 29 March 2018 at [88] and [195] – [203]) whereby they resist going with their father when he does not agree to a proposal which is consistent with their expressed views (albeit on the father’s case, those views had been influenced by the mother) and the father acquiesces to that resistance.
I also take into account the fact that the mother is the primary carer of the children and the observations I have made about her mental state in the reasons of 29 March 2018 at [155] – [167] and the continuing effect on her of her retention in Australia.
While the mother has a history of suffering from depression and taking medication for that illness, her current condition is well maintained. The main risk to the mother is the continuing stress of this litigation and her inability to move to Country H. It is clear that the mother’s current circumstances are affecting her mental health and wellbeing, and this has, to some degree, an effect on her parenting capacity. Bringing finality to this litigation and allowing the mother to relocate, offers advantages to the children by improving her availability to them as a parent, but more importantly, reducing the blame the children currently place upon their father for their belief that their father is the cause of their mother’s unhappiness.
The Independent Children's Lawyer opposes an adjournment application and seeks the father’s application for a stay order be dismissed. The Independent Children's Lawyer, whilst emphasising some of the matters already referred to, also relied heavily on the stress that the children continue to be under as a result of the uncertainty in respect to their future. The Independent Children's Lawyer submitted that on balance, the disadvantage to the mother and the children significantly outweighed any prejudice to the father.
I find there are special circumstances in this case which prevent the court from granting the father’s application for adjournment and they are:
32.1.The father’s failure to comply with the orders of 12 April 2018 when a temporary stay was granted;
32.2.The considerable stress that the children are under by continuing to be caught in the conflict between their two parents;
32.3.The possible effect of an adjournment on the mother’s mental status and as a result, on her parenting capacity;
32.4.The father delayed making an application for legal aid;
32.5.The father has only made the oral application for the adjournment on the day of the hearing without filing all his evidence in support in the normal way.
For those reasons I dismissed the father’s application for an adjournment based on s 57 of the Legal Aid Commission Act 1979.
DISMISSAL OF THE STAY APPLICATION
Both the mother and the Independent Children’s Lawyer seek a dismissal of the father’s application for a stay.
Rule 22.11(1) of the Family Law Rules 2004 (Rules) provides that the filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed, unless otherwise provided by a legislative provision. Rule 22.11(2) of the Rules provides that 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.
Importantly however, the father has failed to file a Notice of Appeal; an application for expedition and an application to rely upon fresh evidence in accordance with the orders of 12 April 2018.
Given the father has not filed a Notice of Appeal (and the usual time for filing an appeal as of right has now expired) there is no basis under the Rules to grant a stay of my orders.
There may be an implied power to grant a stay, but given the circumstances that have been discussed, it is not appropriate to do so. For the reasons already discussed, I am not prepared to allow the father any further extension of time.
COUNTRY I PASSPORTS
On 29 March 2018 I made an order that the mother have sole parental responsibility of the children. That order has the effect of putting in the mother’s hands the right to make decisions about major long-term issues in respect of the children. Whilst issues connected with passports are not specifically mentioned as a major long-term issue in the definition of that term in s 4 of the Act, an issue in respect to passports is a major long-term issue. Notwithstanding the order for sole parental responsibility in the mother’s favour, the mother has indicated that the Country I Embassy requires either an explicit court order or the father’s signature on a document.
The children are citizens of Country I by birth. In the mother’s affidavit dated 6 April 2018 she states that she seeks to obtain for the children Country I passports for ease of movement around Europe. She states that their current Country I passports are expired and that she will take care of all the costs and processing associated with obtaining them.
The Independent Children's Lawyer supported the mother’s application. The father opposed the application and asserted that the mother already has Australian and diplomatic passports for the children and questions the mother’s motivation in wanting Country I passports.
There is no evidence that would lead me to think that the mother had an improper motive in seeking to renew the children’s Country I passports.
The mother already has sole parental responsibility. Making the order that she seeks is simply a consequential order or an order implementing that primary order. I find it is in the children’s best interest to make the order as sought by the mother.
CHANGING ORDER 8.1 OF 29 MARCH 2018 FROM “2018” TO “2019”
Both the mother and the Independent Children's Lawyer ask that Order 8.1 of 29 March 2018, which deals with the children returning from Country H to spend extended time with their father, be changed to start in 2019 rather than 2018.
The mother wrote to the father on 2 April 2018 asking him to agree to this change and, a copy of that email is attached to the mother’s affidavit. In that email the mother offered the father additional time with the children, including her week of the school holidays, in exchange for them not returning on the July 2018 northern hemisphere school holidays.
The father did not agree and opposes this application.
At the hearing before me in March 2018, the Independent Children's Lawyer had originally suggested that the first occasion the children would be required to come back to Australia to be with their father for an extended period of time would be during the northern hemisphere summer school holidays in 2019. After discussions however, the Independent Children's Lawyer changed her position to the 2018 holiday period. At that time it was anticipated that the mother would be leaving almost immediately if a judgment was given in her favour.
The Independent Children's Lawyer points out that the mother did not leave immediately because of the notification she received about her Australian citizenship and that was a significant change in the circumstances from that anticipated during the hearing.
The current situation is that if the mother leaves with the children at the end of May and has to come back at the commencement of the northern hemisphere summer school holidays in the middle of July 2018, then the children will have only been overseas for about five weeks.
The mother also submits that C is a particularly bad traveller and would not cope with another long haul flight so soon after arriving in Country H. She says that C has expressed this anxiety to both herself and the father.
In addition, the mother says that it would be a lot to expect of the children to force them back to Canberra after only five weeks of settling into a new country, new school, new home and different language.
The children themselves, even on the father’s admissions, are now expressing a strong view to him that they do not want to come back in these first school holidays.
The history in the last year or so demonstrates that if the children are not comfortable with the effect of an order the children themselves refuse to cooperate in its implementation.
As I discuss in my judgment of 29 March 2018, the children, when faced with an attitude of their father which is not in line with their expressed views, rebel by refusing to spend time with him. By disallowing the change, I would be leaving in place an order which is different from the expressed views of the children. I accept the Independent Children Lawyer’s submission that this may make the current order nugatory given the past history and current circumstances. The final orders I made were meant to be a “circuit-breaker” to the currently stalled willingness of the children to spend time with their father.
In addition, the mother has indicated that it is her view that if she were given a year to work on the children she would have a far greater chance of creating a circumstance where the children would return and spend quality time with their father during 2019. I accept the mother is genuine when making that submission.
I also accept that it is a long flight for the children to Europe and that five weeks is not a very long time to settle into their new schools and new environment only then to have to leave that environment to come back to their father.
It was always the mother’s intention to accompany the children on their flights to and from Australia. The mother orally offered the information that she had made two job applications in Country H and that having to return to Australia so soon may affect her ability to obtain immediate employment upon her going to Country H.
I find that it would be in the best interests of the children, given now that they are not leaving Australia until the end of May, that order 8.1 not commence this year but commence next year. Accordingly, I make an order varying order 8.1 made 29 March 2018 by changing “2018” to “2019”.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 3 May 2018
Associate:
Date: 3.5.18
0