Zawadzki and Zawadzki (No. 2)

[2019] FamCA 918

FAMILY COURT OF AUSTRALIA

ZAWADZKI & ZAWADZKI (NO. 2) [2019] FamCA 918

FAMILY LAW – ORDERS – Stay – where the Applicant seeks a stay of the operation of certain final orders pending the hearing and finalisation of an appeal – where the Applicant seeks that the prior interim parenting orders are reinstated – Application granted.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Anderson & Senior (Stay Appeal) (2013) FLC 93-556
Bele & Vaughan [2011] FamCA 724
Cook’s Construction Pty Ltd v Stork Food Systems Australia Pty Ltd [2008] 2 Qd R 453
In the marriage of Fahmi and Fahmi (1995) FLC 92-637
Virgtel Ltd & Anor v Zabusky & Ors (No 2) [2009] QCA 349
Watson & Watson (2013) FLC 93-530

APPLICANT: Mr F Zawadzki

RESPONDENT: Mr A Zawadzki

INDEPENDENT CHILDREN’S LAWYER: Forest Glen Lawyers

FILE NUMBER: BRC 8417 of 2015

DATE DELIVERED: 27 November 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 1 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Linklater-Steel

SOLICITOR FOR THE APPLICANT: Parker Family Law

COUNSEL FOR THE RESPONDENT: Mr Fisher by way of direct access brief

INDEPENDENT CHILDREN’S LAWYER: Ms Hawdon, Forest Glen Lawyers

Orders

IT IS ORDERED THAT

1. The Order made 1 November 2019 is discharged.

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. Orders 1, 7-17 (inclusive), 20 and 24-33 (inclusive) of the Order made on 6 September 2019 are stayed pending the determination of Appeal No. NOA 89/2019, filed by the Applicant on 4 October 2019.

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 Zawadzki & Zawadzki 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 BRISBANE

FILE NUMBER: BRC 8417 of 2015

Mr F Zawadzki

Applicant

And

Mr A Zawadzki

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. By Application in a Case filed 10 October 2019, the Applicant sought an urgent listing of the hearing of an Application for a stay of orders made on 6 September 2019 (the September 2019 orders) following a contested hearing which occurred between 13, 14, 15, 16 & 17 March 2017 and 26 and 27 August 2019. 

2. The September 2019 orders removed the long-standing supervision of the children’s time with their father (the Respondent). The rationale for that determination is contained in the Reasons for Judgment delivered to support the orders made.

3. The Applicant filed a Notice of Appeal on 4 October 2019. The mere filing of an appeal is insufficient to grant a stay.[1]

   [1]Family Law Rules 2004 (Cth) r 22.11(1).

4. By way of broad summary, the grounds of appeal particularised in the Notice of Appeal include: asserted error in the application of properly identified principles in the assessment of the harm the Respondent is asserted to now pose to the children; asserted error in making findings of fact for which there was no evidence or in making findings of fact which were not reasonably open on the evidence; asserted error in principle in the process of reasoning applied to arrive at conclusions which include that the Respondent does not now pose an unacceptable risk of harm to the children; and asserted error in law by taking into account matters which were irrelevant and speculative. That is, the appeal challenges the conclusions I reached on the central issue of risk. If successful on his appeal, the Applicant seeks that the proceedings be reheard.

5. The Independent Children’s Lawyer, whom supported the Applicant’s position at trial, supports the grant of the stay of the operation of the September 2019 orders pending the determination of the appeal. Her position at trial was that supervision should continue to be imposed over the children’s time with their father and that the frequency of their supervised interactions should be significantly reduced. Whilst the Independent Children’s Lawyer bears the statutory obligations imposed by the Family Law Act 1975 (Cth) to form an independent view, based on the evidence available to her, of what is in the children’s best interests[2] and to act in relation to the proceedings in the manner she believes to be in the children’s best interests[3] (presumably by seeking those orders which she asserts are in the best interests of the children), it is the Court which is required to determine, on the evidence before it, the orders which it considers to be in the best interests of the children and proper. That is what occurred when the September 2019 orders were made.

   [2]Family Law Act 1975 (Cth) s 68LA(2)(a).

   [3]Family Law Act 1975 (Cth) s 68LA(2)(b).

6. The Respondent opposes the grant of the stay sought.

7. On 1 November 2019, I made an interim order staying orders 1, 7-17 (inclusive), 20 and 24-33 (inclusive) of the September 2019 orders on condition that the Applicant file an Application seeking that the hearing of the appeal be expedited. I did so on the basis of inquiries which revealed that, should such Application be filed and considered favourably, the appeal could well be listed for hearing in the sittings of the Full Court commencing on 3 February 2020.

Should the Applicant be heard on the Application for stay?

1. In the written submissions prepared on behalf of the Respondent, his Counsel submitted that the Applicant’s actions in immediately flouting compliance with the September 2019 orders, despite his evidence that he would comply with the same, amounted to behaviour which bordered on a contumelious contempt of the Court. Such submission is certainly not without proper basis.

2. I accept that the Applicant has not complied with the September 2019 order; I also accept that, consequently, the children have not spent unsupervised time with the Respondent as provided for in that order.

3. This reality necessitates that I consider whether the Applicant should be heard on the Application for a stay of the operation of the same pending appeal.[4] In determining, in the exercise of discretion, whether or not to hear the Applicant on his Application for a stay of the operation of the September 2019 orders pending determination of the appeal against the same, the balance is between his right to procedural justice (which includes the right to be heard) and public policy considerations, which include whether his non-compliance with the terms of the order impedes the course of justice or makes it more difficult for the Court to enforce the orders made or constitutes an abuse of process.

   [4] In the marriage of Fahmi and Fahmi (1995) FLC 92-637; Watson & Watson (2013) FLC 93-530, commencing at [36].

4. In considering whether to exercise the discretion in favour of hearing the Application for stay, I think it relevant to record that, by the time the Notice of Appeal was filed, the children had failed to attend the unsupervised time prescribed by the September 2019 order on no less than three occasions.

5. Given that the appeal challenges the findings made about the central issues of abuse and risk, I accept that it is appropriate and proper that the Applicant be heard in relation to his Application seeking a stay of the operation of the September 2019 orders pending determination of the Appeal, filed on 4 October 2019, in respect of the same.

6. I think the fact that the Applicant took until 4 October 2019 to file the Notice of Appeal, whilst simultaneously failing to comply with the terms of the 6 September 2019 order is a factor to be considered in assessing the Respondent’s contention about the Applicant’s asserted lack of bona fides.

Applicable Principles

1. The principles which govern the granting of a stay of the operation of orders pending appeal are well known.[5] They may be summarised as follows:

   a)the Court should consider whether there has been any delay in bringing the application for a stay of the operation of the orders the subject of appeal; and

   b)the Respondent is entitled to the benefit of the judgment and is entitled to presume the judgment is correct; and

   c)whilst the Applicant bears the onus of establishing a proper basis for the stay, it is not necessary for him to demonstrate any “special” or “exceptional” circumstances – however, regard must be had to his bona fides; and

   d)given that a stay may be granted on terms that are fair to all parties, the Court has to weigh the balance of convenience and the parties’ competing rights; and

   e)the Court must consider whether there is a real risk that to deny a stay would render a successful appeal nugatory or would make it impossible or impractical to restore the situation – this will be a substantial factor in determining whether it is appropriate to grant a stay pending the determination of an appeal and, given this, the Court should undertake some preliminary assessment of the strength of the Applicant’s appeal to assess whether he has an arguable case on appeal; and

   f)there is desirability in limiting the frequency of any change in children’s living arrangements; and

   g)the Court should have regard to the period of time in which the appeal can be heard and whether existing satisfactory arrangements support the grant of a stay for a short period of time; and

   h)the Court should regard the best interests of the children the subject of the proceedings as a significant consideration.

   [5]  See: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 at[18]; cf Anderson & Senior (Stay Appeal) (2013) FLC 93-556, 87,446-87,447 [34]-[38] (as to whether special or exceptional circumstances are required); Bele & Vaughan [2011] FamCA 724; see also Cook’s Construction Pty Ltd v Stork Food Systems Australia Pty Ltd [2008] 2 Qd R 453, 455 [12] and Virgtel Ltd & Anor v Zabusky & Ors (No 2) [2009] QCA 349, [19].

2. I accept that, having filed a Notice of Appeal on 4 October 2019, the Applicant then filed the Application seeking a stay of the September 2019 orders on 10 October 2019 and sought an urgent hearing of the same; for reasons expressed at the commencement of the hearing on 1 November 2019, I accept that the Applicant was not the cause of the delay in the hearing of the Application for stay after it was filed.

3. I have already concluded, for the reasons expressed in the Reasons for Judgment delivered on 6 September 2019, that the children’s best interests are served by spending unsupervised time with the Respondent in the manner prescribed by the September 2019 orders. Given this, I consider that the children’s best interests will not be served by staying the operation of the same pending the determination of the appeal filed 4 October 2019.

4. It seems likely that the appeal will be heard in the first week of February 2020. Whilst this is the case, I accept the submission made by Counsel for the Respondent to the effect that the mere fact that an appeal can be heard in a relatively timely manner is not determinative of an Application for a stay of the operation of the orders pending that hearing: it is but one factor to which consideration must be given. It is clear, and I accept, that this factor must be weighed against those such as that the Respondent is entitled to the benefit of the Judgment delivered in September 2019 and is also entitled to presume that it is correct: that is, he is entitled to seek that the children start to spend unsupervised time with him in the manner prescribed in the September 2019 order. Had it been likely that the appeal would not be heard until later than February 2020, then it is likely that I would have accorded greater weight to this consideration than I have.

5. Clearly the Applicant is not required to demonstrate any special or exceptional circumstances in order to persuade of the making of an order staying the operation of the September 2019 orders pending the hearing and determination of the appeal against them; however, he does carry the onus on this Application to establish a proper basis for the stay of the operation of the orders. Counsel for the Respondent submitted that the Applicant had not discharged this onus; he submitted that what the Applicant was endeavouring to do – despite giving evidence that he would comply with the orders of the Court and that the children would not have any difficulty in spending unsupervised time with their father and would simply go as directed by him – was to revisit those matters which were the subject of consideration and lengthy submissions at the trial and which commensurably occupied a significant aspect of the reasoning expressed in the Reasons for Judgment delivered on 6 September 2019.

6. Counsel for the Respondent submitted, in essence, that: given the findings expressed in the Reasons for Judgment, the Respondent should not be deprived of the opportunity to spend unsupervised time with the children; given the Applicant’s evidence at the trial (to the effect that he would comply with an order for the children to spend unsupervised time with their father although he would not support the same because he did not believe it would be the right decision)[6] and his evidence about how he thought the children would react if told that their time with their father was to be unsupervised (being that he thought they would just go and would not question this),[7] the Applicant was not acting bona fide in seeking to stay the operation of the Orders made on 6 September 2019 pending the determination of his appeal but was, in essence, seeking to achieve, via the appeal process, that which he failed to achieve at trial. Given the Applicant’s evidence at trial – as accepted in the manner demonstrated in the Reasons delivered on 6 September 2019 – I consider such submissions to be entirely reasonable.

   [6] Paragraph [129], Reasons for Judgment delivered 6 September 2019.

   [7] Paragraph [117], Reasons for Judgment delivered 6 September 2019.

7. Counsel for the Respondent also submitted, both orally and as set out in the written submissions,[8] that the Applicant’s prospects of succeeding on the appeal were limited and that, for the reasons developed in the written submissions, the Court could be satisfied that the Applicant does not have an arguable case on appeal.

   [8] Exhibit A.

8. Whilst I am required to arrive at least a prima facie view about the prospects of the success of the Applicant’s appeal against the September 2019 orders in light of the Reasons delivered in support of the same, I am not deciding that which the Full Court will decide: namely, whether the appeal will succeed or not. Rather, I consider that I am simply required to determine, in broad terms, whether the appeal, as pleaded, has merit in the sense that it is arguable and/or whether it appears to be based on substantial grounds – as opposed to being based on grounds which might suggest that the Applicant lacks bona fides or is employing the appeal as a mere delaying tactic. 

9. It is relevant, I think, to note that the grounds of appeal are not limited to those which assert error in the exercise of discretion. Given this, I do not consider that I can conclude that it is unarguable.

10. Counsel for the Applicant submitted that the appeal against the September 2019 orders – which practically speaking removed the imposition of supervision from the children’s time with the Respondent–- would be rendered nugatory if the stay as sought was not granted. It was submitted, in essence, that, if the stay is refused and the September 2019 orders are implemented, the children will be exposed to an unacceptable risk of harm, the severity of which is significant; it was also submitted that, if the children start to spend unsupervised time with the Respondent and the appeal succeeds on the basis of established error in the assessment of risk, the children will have already been exposed to what was submitted to be the significant risk of harm of spending unsupervised time with the Respondent and there would, in a sense, be “no turning back”.

11. In challenging this submission, Counsel for the Respondent submitted, in essence, that the Applicant’s complaint about the conclusions about the issue of whether unsupervised time with the father would expose the children to an unacceptable risk of harm is nothing more than a repetition of the submissions made at the trial at which the Applicant was unsuccessful.

12. In the exercise of the discretion required to be exercised in determining applications for the stay of orders pending appeal, I have concluded to grant the stay sought because I am not persuaded that the Applicant has an unarguable case on appeal; I do not regard there to have been any unreasonable delay in bringing the Application; there is a risk that refusing the stay here might render the appeal nugatory in the sense of the children moving to unsupervised time when the assessment of the risk which it is asserted the Respondent continues to pose to the children is one of the central aspects the Applicant seeks to agitate on the appeal and there is a relatively short period of time within which the appeal can be heard.

13. Whilst I accept that the Respondent will suffer prejudice if the stay is granted, I have concluded – somewhat reluctantly and certainly not without hesitation – that the balance of convenience just favours the granting of the stay. My reluctance and hesitation arise because the stark contrast between the Applicant’s evidence at trial about his future compliance with orders contrary to his views and his assessment of how the children would cope with spending unsupervised time with the Respondent and his subsequent actions combine to cause me some disquiet about the bona fides of his appeal and to muse about whether it has been brought for the purpose of delay or as some form of tactic to further his assertion at trial that he thought the children should be older than they currently are before being required to spend unsupervised time with the Respondent.

14. Despite that disquiet, for the reasons expressed, I grant the Application for a stay and make orders in the terms set out at the commencement of these Reasons. The consequence of this is that those previous interim parenting orders which provide for the children to spend supervised time with the Respondent remain in force.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 27 November 2019.

Associate: 

Date:              27 November 2019