Hannigan & Sorraw (No. 3) [2010] FamCA 868 (23 September 2010)

[2010] FamCA 868

FAMILY LAW - PRACTICE AND PROCEDURE - Stay pending appeal

(1) That on the mother by 5pm on Friday 24 September 2010 filing a written undertaking to the Court to subject to orders of the Full Court of the Family Court of Australia return S born ... December 2005 to Sydney, Australia forthwith in the event that the father's appeal from the judgment and orders made in the family Court of Australia in the proceedings herein on 13 September 2010 by the Honourable Justice Cohen is successful:

(a) the interim stay granted by Order 1 of the Honourable Justice Loughnan on 16 September 2010 is hereby discharged at 5pm on Thursday 30 September 2010; and,

(b) Order 3 made by the Honourable Justice Loughnan on 16 September 2010 is hereby discharged at 5pm on Thursday 30 September 2010; and

(c) the father's Application in a Case filed 20 September 2010 is hereby dismissed at 5pm on Thursday 30 September 2010 and the orders he seeks in the said application are hereby refused at that time.

(2) That in the event that the mother fails to make the undertaking to the Court referred to in Order 1 on that failure orders are hereby made in accordance with paragraphs 1, 2 and 3 of Part D of the father's Application in a Case filed 20 September 2010 as set out hereunder:

"1. That the Orders of 13 September 2010 be stayed pending the conclusion of an Appeal.

1. Each the respondent mother, her servants or agents are hereby restrained from removing or attempting to remove the said child, [S] born [...] December 2005, from the Commonwealth of Australia without the written consent of the other party.
2. That the Commission of the Australian Federal Police and the Ministry of Immigration take all necessary steps to immediately place the said child's name on the Airport Watch List, also known as the PACE Alert System, at all points of arrival and departure in the Commonwealth of Australia and maintain the child's/children's name/s on the said list until its/their removal by Order of the Court."

IT IS NOTED that publication of this judgment under the pseudonym Hannigan & Sorraw is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

1. Before me is an application for a stay pending determination of an appeal from my judgment delivered on 13 September 2010.
2. In stay applications the best interests of the child are not the paramount consideration. A stay order is not a parenting order to which Pt VII and therefore s60CA of the Family Law Act applies. This does not mean that the best interests of the child are not a significant consideration. It means that other factors are to be weighed which, like the child's best interests, are also significant considerations. According to Watson SJ in In the Marriage of Carlen (1977) FLC 90-320 the Family Court should consider:

1. the rights of the child; 2. the expected delay on appeal;

1. whether refusal makes the appeal nugatory if it succeeds;

1. the comparative hardship imposed by a stay; that is, the balance of convenience to the parties; and, 2. the grounds of appeal, which really means the prospects of success of the appellant.
2. This decision has not been held directly to be other than correct in the Full Court. In Clemett and Clemett (1980) 50 FLR 248, the Full Court regarded Watson SJ's statement of the law as correct but emphasised that the most important factor was the child's rights. It said that if the child's current situation is satisfactory and the appeal can be heard promptly, is based on substantial grounds and is not a delaying tactic, it is appropriate to grant a stay for a short period.
3. The High Court of Australia has defined the basis for deciding stay applications pending leave to appeal to it in general. The relevant considerations were stated by Brennan J sitting alone in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 161 CLR 681. In JRN v IEG (1998) 72 ALJR 1329 Kirby J said that these principles need adaptation, as they obviously do, in children's cases. He said children's "welfare must always be in the mind of the court in making an order affecting their interests". In Jennings (supra) the factors which are to be considered when a stay is required to preserve the subject matter of the litigation not involving the fate of children were said by Brennan J to be:

1. The prospects that special leave will be granted - This should be adapted for stay applications in appeals from the decision of a first instance judge in the Family Court by making the consideration that of the prospects of success in the appeal. 2. Whether the applicant for a stay has applied to the Court below - This consideration is irrelevant here.

1. Whether the grant of a stay will cause loss to the respondent to the appeal - This can be modified to whether the grant of a stay will cause the respondent to the appeal to lose the benefit of the judgement.

1. Where the balance of convenience lies - This can be modified to add "for the parties and child"; convenience for the child being its "benefit" or "welfare".
2. However, there is a very important rider which is included by Brennan J. It is at the heart of the High Court's attitude to the granting of a stay. It is that the stay must be required in order to preserve the subject matter of the litigation. This is equivalent to a consideration of whether refusal of the stay will render the appeal nugatory. There is no real difference between the stance taken by Watson SJ and the points made by the Brennan J once allowance is made for the difference between commercial disputes and the like and disputes over parenting orders.
3. Here I have found that the child's best interests will be served if she is taken to live in the United States by the mother. To grant a stay would be contrary to what I have found to be her best interests. This is despite finding that the child has a good relationship with the father which will be undermined if she is permitted to live in America and, as the father's counsel said in reflecting the views of a family consultant, will not survive in its present form. I clearly found that despite the undermining of the relationship between the child and the father which will result from being permitted to live in the United States, her best interests would be upheld if she was to live there with the mother. I also found that she is due to commence school next year. I now know, from the mother's evidence filed in the stay application, that her school year in the United States commenced in early September. She could start school immediately on going to the United States if a stay is refused. If she is ultimately allowed to live in America, she will have avoided the disadvantage of commencing school in Australia in February 2011 and changing to an American school in which her class is ahead of her. She will probably be harmed in this respect by a stay if the father's appeal is more likely than not to fail.
4. The mother, however, will probably be harmed emotionally by continued isolation from her family and their support if a stay is granted. This will, according to my findings, probably have an adverse effect on the child.
5. The mother will be put at considerable disadvantage by a stay. She is a school teacher and an American Citizen. Her affidavit of 21 September 2010 sheds light on her current situation in Australia. Her job as a teacher on the Far South Coast has ended. She is now staying temporarily in Sydney as a result of the generosity of people she does not know well. She sleeps on a couch. The child sleeps on it with her. She has given up her home in the south coast and has sold its larger contents. Her job was a temporary one where she worked four days per week.
6. The father concedes she should not have to return to the south coast but, if a stay is granted, says she could live in Sydney. She has no place to live in Sydney, has no job here, no income and does not qualify for social security benefits including child related benefits. She receives no child support from the father who, despite the mother having asked for an order for support from him of $700 per week as a condition of a stay, offered nothing to support her if she must live in Sydney pending the decision of the Full Court on the appeal from my judgment and orders. Thus, in addition to the harm I have found to be likely to be suffered by the mother as a result of isolation from her family support if she cannot return to the United States, the grant of a stay will impose additional harm because she will have the difficulty of having to find temporary accommodation and a temporary job and will not have the time or a basis for making sufficient contacts with a community from which she can obtain some support in the place of that which is immediately available from her family in America.
7. There she has already made arrangements which will allow her to live rent free in a home owned by her stepfather. Her grandparents live nearby and her brother and his wife have a holiday home nearby. She does not expect to have any difficulty finding employment as a teacher there. On becoming a teacher, she can buy a very cheap home on a 50% of the cost subsidy and she will qualify for social security. Homes which have been seized by foreclosure for unpaid loans are very cheap there. If she lives in New York she will have free health insurance benefits for herself and the child and will, of course, have the immediate material support of her family.
8. She has only $450 left to tide her over in Australia and is unlikely to be able to obtain teaching work here until the beginning of the 2011 term, at least. Nevertheless, I expect her family to help her financially to a modest extent if she has to remain in Australia to be with the child. If she does find work here before the beginning of the 2011 school year, she will have to find a preschool for the child, something which is very costly but, more importantly, very hard to find on short notice. Where she will live and send the child to preschool will depend on where she will work. She estimates her expenses to live in Sydney will be about $1100.00 per week. Her family have reached the stage where they are finding it difficult to continue to support her financially.
9. The father is working in the Snowy Mountains at present. He does not suggest he would immediately come to live in Sydney if the mothers lives with the child here, but would probably do so after the skiing season has ended, which will be soon and well before the appeal is likely to be decided. His family owns a home in Sydney which is used by it as a weekender. It is highly likely that he could live there temporarily if he moves to Sydney. He has not placed any evidence relating to the balance of convenience before the Court. That balance strongly favours the mother being permitted to live with the child in America pending the decision on appeal. There is additional force in favour of this situation because I have held that hardship to the mother resulting from the child being kept in Australia is likely to undermine the child's welfare.
10. No particular harm will be imposed on the father by refusal of a stay. The child would, by the grant of a stay, continue to have better contact with the father and his family and worse contact with the mother and her family than she will have if allowed to be taken immediately to the United States to live. I have held that overall the better option for the child's welfare is to be allowed to live in the United States because less contact with the father, notwithstanding the prospect of it undermining her relationship with her father, is in her best interests.
11. If the child is allowed to live in the United States pending appeal it would be ridiculous to say it will render the appeal nugatory. The child has already been returned to Australia from the United States pursuant to the Hague Convention. The return order was made promptly after the application for return was made. An order refusing a stay can be made conditional upon the mother undertaking to the Court to return the child forthwith on the father's appeal being decided in his favour. There is no realistic prospect that she will not be returned reasonably promptly in the circumstances. The argument put before me about the mother's attempts to go to the United States immediately following my decision does not alter this, whether she knew of the possibility of an appeal or not.
12. Any argument which is to the effect that, if she is permitted to go to America, the status quo will be disturbed and the father's appeal will to some extent be undermined in its value to him cannot be based on Clemett v Clemett (supra) because, in my opinion, the child's situation is not satisfactory, the appeal is not likely to be heard promptly, the stay is likely to be for a lengthy period if it is warranted and, for reasons I shall explain below, the appeal is a weak one. The status quo argument based on Cilento's Case (1980) 6 Fam LR 35 is not now good law. It must have influenced that aspect of the decision in Clemett (supra) which asserts the importance of the current situation being "satisfactory" rather than in the child's best interest. Clemett was heard after Cilento but in the same year. It must now be questioned in this respect. Instead, one should give weight to the child's right to have what is best for her in place of maintenance of a "satisfactory" situation. That the mother has a right to the fruits of the judgment also tends to undermine the satisfactory status quo argument.
13. The real difference between the refusal and granting of a stay relates to the chidld's rights; her right to orders which further her best interests rather than disturbance of the status quo. The undermining of her rights is exacerbated by the fact that although she is doing well under the present arrangements, I found this will probably not continue because of the father's controlling and selfish nature. As the delay before a decision on the appeal is likely to be lengthy, it cannot be said the child's current situation where she is spending too much time with the father and not enough with the mother is appropriate or satisfactory in any event.
14. The grounds of appeal do not appear to me to be strong. One in particular is quite erroneous. In paragraph 8 of the grounds of appeal filed 20 September 2010 the husband asserts error which is said to be a finding that the mother did not use the false allegation of sexual abuse against the father for tactical advantage. This is the opposite of what I found. Paragraphs 122, 128, 129, 130, 131, 132 and 136 make this perfectly clear.
15. The other grounds are largely based on my assessment of the evidence and impression of the witnesses. I held the unique advantage of being in a position to assess the witnesses at first hand. I regard the appeal as likely to fail despite the fact that my judgement was delayed for some time after the hearing and the assumption that a judge's impressions of the witnesses and evidence fade and are less reliable as time passes.
16. In this instance, my impressions were clearly stated in my contemporaneous notes, notes which were relied on for the judgement together with the indelible and still very clear image I held when writing the judgement, and still hold, of the father's mother's and father's demeanour when giving evidence. That of the father's mother was unforgettable because of the extremeness of her display of animosity toward the mother.
17. Much of the appeal grounds is made of the fact that I declined to accept the evidence of Ms M and the assessments by both Ms M and Ms T of the father's parental ability. It is argued that both Ms M and Ms T saw the father with the child where I did not. In fact, I accepted Ms M's observations of the father's relationship with the child. I found at paragraph 192 that the relationship is good and that she is closely attached to him. I held that, because of the lack of contemporaneity of each family consultant's reports and the fact that the father had misled and manipulated both based on the undisputed facts and my findings on disputed facts, I should not accept their opinions about the father's parenting ability.
18. That the father concedes that although the parties now live in the south coast area the mother should be permitted, if a stay is granted, to move to Sydney does not assist his case for a stay. It is my view that this would not solve the mother's problems but would really amount to a compromise between the two principal stances of the parties. Such a compromise does not improve the arguments for a stay.
19. On weighing them, I am of the view that this is a very strong case for refusal of a stay and, on the mother's undertaking to the Court to return to the child to Australia forthwith if the father's appeal is upheld, shall for the above reasons refuse the father's application for a stay pending hearing but shall grant a stay for one week to allow the father to approach the Full Court for a stay. One week is more appropriate in view of the Full Court's availability than the 48 hours the father sought.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen delivered on 23 September 2010