K v B [2006] WASCA 100

Family Court Act 1997 (WA), s 84, s 90

Rules of the Supreme Court 1971 (WA), r 32(2)(h), r 44

Supreme Court (Court of Appeal) Rules 2005 (WA)

Application for extension of time to appeal granted

BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining & Energy Union of Workers & Anor [2005] WASCA 138

Clemett, In the Marriage of (1980) 50 FLR 248

CSN v JBN (1998) 24 Fam LR 174

Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308

Goldbay Corporation Pty Ltd v Apthorp [2006] WASCA 84

Re Evelyn (No 3) (1998) 23 Fam LR 73

AGF v LLS [2005] FamCA 44; (2005) 191 FLR 283

Anzini and Anzini [2005] FCWA 114

Croney v Nand [1998] QCA 367; [1999] 2 Qd R 342

D & B v L [2004] WASCA 116

Horsford and Horsford [2002] FCWA 110

Manners and Bilchuris [2002] FCWA 45

Swinar and Swinar [2003] FCWA 76

Tweedie and Tweedie [2003] FCWA 30

Wheaton and Wheaton [2004] FCWA 149

1 PULLIN JA: The appellant is appealing from orders made by Penny J in the Family Court on 4 October 2005. These reasons concern an application to stay the orders. I dismissed the application when I heard it on 19 May 2006. These are the reasons for that decision.

2 The 11 orders appealed against include an order that:

"Until further order of the Court the child ... born 21 June 1999 ('the child') reside with the Applicant [Respondent] from 6.00 pm Friday 7 October 2005, with the child to be collected by the Applicant at MacDonalds Restaurant, Cannington, and the Applicant have sole residential responsibility for the child together with all the powers necessary for the day to day care, welfare and development of the child."

3 Up until those orders were made, the child had resided with the appellant since birth.

4 Penny J set out the history of the matter, the law and the factors leading to her decision in B and K [2006] FCWA 25. I incorporate the paragraphs of that judgment by reference, as material relevant to the consideration of this stay application. Her Honour concluded at [60] that the child should reside in Bunbury with the respondent in lieu of residing with the appellant.

5 I should say something of the proceedings which took place before the orders made on 4 October 2005. On 12 July 2005, the respondent's application for residency of the child, filed on 11 February 2003, came before Tolcon J. He indicated that, in light of the trial of the respondent's previous application for contact, heard by Holden CJ in September 2002, "nothing would warrant a rehearing".

6 Counsel pointed out that the appellant had filed no documents and Tolcon J said:

"Well, he [the respondent] might be very lucky, because he mightn't have even got a start. You see, I get sick and tired of applications of this nature coming before the court. This matter was heard by his Honour the Chief Judge, and within 6 months or thereabouts there's a fresh application. I've had a look at the papers, and unless something has escaped me there is nothing that would warrant a re-hearing, and it's high time the parties started to act as parents, instead of the nonsense that's been going on.

...

I'm amazed that it hasn't been picked up to date. The application before the Chief Judge, the matter came before the Chief Judge. It's a defended matter, but he gave judgment on the 5th of September 2002 and your application was filed the 11th of February 2003. That's less than 6 months, and when you look at the papers that have been filed nothing has changed except that you've got two immature people carrying on in the way in which they have.

...

Now, within 5 months the matter comes back - - the father brings an application to this court, and it's necessary for the father to show changed circumstances that warrants the matter being reopened. And my comment in abbreviated form to Mr Hooper was that I'm sick and tired of people coming back to this court at short notice. I'm sick and tired of immature people carrying on in the way in which it appears that you two have been carrying on, and I'm not going to tolerate it. And I'm told that people are not complying with orders and directions of this court, and they will.

Now, whether or not I hear the case or some other judge hears the case the judge has got this to determine. First of all he has got to determine whether he will re-hear the case, and in doing that he can decide that on the papers or he can hear the evidence and then make a decision.

...

MR HOOPER; Well the only witnesses at the moment, your Honour, are my client, his partner and potentially Mr P. The mother has filed no documents. She has not sought leave to file any document. I would assume she - -

HIS HONOUR: Well, she will. She will either be filing documents or giving evidence. The court's not going to make a decision just on the papers.

MR HOOPER: Well, your Honour, your Honour made some comments earlier - - -

HIS HONOUR: Well, you can deal with that at another time, Mr Hooper. The fact of the matter is no judge will determine this case just on the husband's papers and the court expert.

MR HOOPER: Well, your Honour, if Ms K chooses not to file an affidavit or if she files one and doesn't get leave the court may have no option.

HIS HONOUR: Well, the Full court would have a lot to say about that."

7 The matter was then adjourned. Subsequently, the court appointed expert Mr P provided an up to date report. In that report he recommended that the child reside with the mother but with a review after nine months. The matter was listed before Penny J on 4 October 2005.

8 Whether the appellant was encouraged by Tolcon J's comments and the report of Mr P to develop undue confidence that the outcome might be in her favour even if she did not participate, I do not know. All that is clear is that she filed no affidavit, arranged no representation and arrived late at the hearing on 4 October 2005.

9 The transcript of the hearing on 4 October reveals that the proceedings commenced sometime before 10.21 am. Counsel for the respondent opened the case and then called the respondent. While he was giving evidence, and at 10.45 am, the appellant arrived. The transcript reveals the following:

"HER HONOUR: Ms K, could you come forward please? Come over here, on this side - on that side there. Mrs K, it's a quarter to eleven. You're very late.

MS K: Yes, I know. I'm sorry. My - - you know, in fact all my kids are sick, so - -

HER HONOUR: All right.

MS K: - - that's why I'm late.

HER HONOUR: All right. Now, we're proceeding with the hearing now.

MS K: Yes.

HER HONOUR: I've given leave for them to proceed on an undefended basis; that is that you won't be able to take any part in the proceedings because you haven't filed any documents. All right? You didn't come to the conference and I've decided that I'll just hear their side of the story, so at the moment Ms Taylor is asking some questions. You can listen to what's happening. Yes.

MS TAYLOR (TO WITNESS): So do you acknowledge that that relationship with the siblings is an important one?---Yes."

10 The appellant says in her affidavit in support of this stay application:

"11. Following the Hearing on 12 July 2005 I did approach a solicitor, CARMELLO GRASSO of Millsteed Gasso to act on my behalf and prepare an Affidavit for the purposes of the Trial. However after several weeks, and shortly prior to the listed Trial date on 4 October 2005 he told me he did not have the time to prepare the Affidavit and told me to go to Court on the day.

12. I attended Court on the day of 4 October 2005, although I was late in arriving. When I attended the Trial Judge told me I would not be able to take any part in the proceedings and that I could just listen to what was happening (p 13 of the Transcript). Annexed hereto and marked 'D' is a copy of the Transcript."

11 As a result of the orders which were made on 4 October, the appellant was obliged to hand over the child to the respondent. The child has resided with the respondent since October 2005. Penny J published no written reasons at the time of making her orders and in fact, no written reasons were published until March 2006.

12 The appeal to this Court is made under s 211 of the Family Court Act 1997 (WA). That section provides that an appeal lies to the Court of Appeal from a decree of the Family Court made under its non-federal jurisdiction, s 211(3). Section 211(5) provides that such an appeal be made in accordance with the Rules of the Supreme Court, which include the Supreme Court (Court of Appeal) Rules. Although the appeal is possibly an interlocutory decision, leave is not required. See Goldbay Corporation Pty Ltd v Apthorp [2006] WASCA 84.

13 The appeal was not instituted within the time required. It appears that the appellant was probably confused about where the appeal had to be instituted.

14 The application for a stay was filed on 24 November 2005, but at that time no reasons for decision were available. On 17 January 2006 an application to extend time in which to appeal was filed.

15 These applications were referred to me by the Registry of this Court on 20 January 2006 and, on 23 January 2006, I directed that the appellant should be advised to write to the Associate to Justice Penny, advising that an appeal had been instituted, that a stay application had been filed and inquiring when reasons for decision were likely to be published, and that the appellant should file an affidavit deposing to the sending of the letter and any response received. I directed that if no response was received within seven days, the appellant should advise this Court and the application would then be listed with notice to the respondent.

16 Unfortunately, it was not until 8 February 2006 that the Supervisor of the Court of Appeal Office wrote to Terrace Law, acting on behalf of the appellant, providing this information.

17 On 2 March 2006, Terrace Law wrote to the Supervisor of this Court in the following terms:

"Pursuant to your letter of 8 February 2006 we wrote to the Judge's Associate but have not received a response. In that respect we enclose affidavits sworn by the writer. We would be obliged if the application for leave to appeal out of time together with the stay application could now be listed for hearing."

18 On 17 March Terrace Law wrote to the Supervisor advising that Justice Penny had delivered reasons for decision on 17 March 2006 and enclosing a copy. Terrace Law once again asked that the applications for a stay and an extension of time be listed for hearing.

19 Again, there was regrettable delay on the part of the Supervisor of the Court of Appeal Office, because it was not until 19 April 2006 that he referred this material to me. At the time I was on leave. Upon my return, in the last week of April, I saw the material and directed that the matter be listed for hearing before me on 19 May and gave directions about the filing of submissions.

20 That history reveals that most of the delay in bringing this matter on cannot be attributed to the appellant. The only delay which can be attributed to the appellant was the initial delay in instituting the appeal.

21 The application for a stay is made under r 44 of the Supreme Court (Court of Appeal) Rules 2005. Under those rules, a stay of execution of a primary court's judgment is an interim order which is one of a class of orders a party may apply for before the resolution of an appeal. A single Judge of the Court of Appeal has jurisdiction to deal with and decide the application for a stay under r 43(2)(h). There are no special provisions specifying the considerations relevant to a stay application. In relation to civil matters, the relevant considerations are set out in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 and BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining & Energy Union of Workers & Anor [2005] WASCA 138. However, while the considerations set out in those cases will be relevant to this stay application, it is also important to bear in mind that in relation to orders concerning children in the Family Court, an order for a stay in operation of a parenting order pending an appeal, is itself a parenting order for it suspends an existing parenting order. See Re Evelyn (No 3) (1998) 23 Fam LR 73 at [68]. A parenting order is defined in s 84 of the Family Court Act 1997.

22 The result is that in determining whether to allow a stay, the court must regard the best interests of the child as the paramount consideration. See Family Court Act s 90.

23 The appellant's submissions and the affidavit filed in support of the application complain about procedural fairness. The appellant submits that the fact that the hearing "was dealt with as if it was undefended", as her Honour said in her reasons for decision, did not mean that the appellant should have been excluded from participating in the hearing on 4 October. The appellant refers to r 16.05(2) of the Family Law Rules:

"The court must not make an order under subrule (1) that detracts from:

(a) the attainment of justice;

(b) each party's entitlement to a fair and just hearing; or

(c) each party being given a reasonable opportunity to adduce evidence, cross-examine and re-examine the witnesses, and to address the court."

24 The background to this matter reveals that the appellant may have difficulty in arguing that she was not given a reasonable opportunity to adduce evidence but she does complain that, in effect, she proceeded in the way she did because she had made an assumption that the court would not make a decision contrary to the court appointed expert's opinion. In any event, her complaint is that, having attended court on 4 October 2005, she should have been permitted to participate.

25 It is not necessary for me to say more about this, save to say that there is substance in the appellant's argument that she was denied procedural fairness. The effect of the order that the matter was to be "dealt with as if it was undefended" will have to be explored at the hearing of the appeal. The appellant's argument is one which has reasonable prospects of success. That, however, is not enough to persuade the court to grant a stay.

26 The appellant contends that the appeal will be rendered nugatory if the child remains residing with the father because the longer the child does so, the less likelihood there is that the court will order the return of the child to the mother. The respondent denies that this fact will determine the case and take away the power of the court to reverse the order. I agree. The length of time the child is with the father may be a factor in favour of ordering the father to have custody, but that factor will not preclude the court making an order in favour of the mother.

27 The appellant referred me to CSN v JBN (1998) 24 Fam LR 174 where reference was made to Clemett, In the Marriage of (1980) 50 FLR 248 and in particular to what was said by Nygh J in that case, namely:

"In determining whether a stay should be granted the welfare of the child is the paramount consideration. It is especially desirable that the frequency of any changes in the custodial arrangements relating to the child should be limited as much as possible. If the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt with within a reasonable time and the present circumstances of the child are satisfactory, it will be appropriate to grant a stay of proceedings for at least a short period."

28 Reference was also made in CSN v JBN to the desirability of not disturbing the status quo pending the determination of the matter unless there is something about that status quo which might be harmful to the child. The point was also made that it was particularly important that an appeal be heard as quickly as possible where the custody and care of a child is involved. One could not deny the validity of that observation.

29 In relation to the above quoted passage in Clemett's case and the suggestion about the appropriateness of a stay, it is my opinion that such an observation is apposite only where a change in residence had not yet occurred. In this case, by the time the appellant filed her appeal notice, the change of residency had occurred almost two months before.

30 In my opinion, it would not be in the interests of the child in this case to order a stay. If that happened, the child would be sent back to reside with the mother pending the appeal, with the possibility that, if the appeal failed, the child would have to be sent back to reside with the father. In the absence of any evidence concerning any mistreatment of the child while residing with the father, it would be appropriate for the child to stay with the father pending the appeal. As a result, I decided that the stay application should be dismissed.

31 If the appeal succeeds, then issues about where the child should reside pending a rehearing would have to be dealt with, and in those circumstances it would seem imperative that the court appointed expert provide a report which would assist the court in determining what kind of order should be made. The appellant through counsel indicated that she would be prepared to meet the cost of that report.

32 I have granted an extension of time in which to appeal and I have ordered expedition of the appeal.