Stay of orders

Stay of orders

Ulster & Viney

1. By an Application in an Appeal filed on 2 September 2016, Mr Ulster (“the father”) seeks a stay of the orders made by the Full Court on 28 July 2016 pending determination of his application for special leave to appeal to the High Court. Ms Viney (“the mother”) resists the application.
2. The father and mother have two children, namely X who was born in 2006 and Y who was born in 2008. Following the parties’ separation in mid 2014, they were unable to agree about the children’s living arrangements (and other matters which, for present purposes, are irrelevant). Thus, on 2 October 2014, the father commenced proceedings in the Federal Circuit Court for parenting and property orders pursuant to Parts VII and VIII of the Family Law Act 1975(Cth) (“the Act”). The proceedings went to trial and on 14 October 2015 Judge Bender published her reasons for judgment and made final orders. The primary judge dismissed the father’s application for the children’s time to be shared equally between he and the mother, and the mother was given permission to relocate the children to the Town O area at the end of the 2015 school year. Town O is in regional Victoria and about 85 kilometres from where the parties and children were living in Melbourne.
3. The primary judge was satisfied that it was in the best interests of the children for them to continue to live in the primary care of their mother and in circumstances where the father said he would continue to reside in Melbourne, for the children to spend time with him essentially each alternate weekend, on various special occasions and for a sizable portion of the school holidays. Thus, the children’s time with their father was significantly reduced during school term. Even so, the primary judge was satisfied the children would maintain meaningful relationships with him.
4. By Notice of Appeal filed on 11 November 2015 (as amended on 11 February 2016), the father appealed most of the parenting and associated orders. The primary judge granted a partial stay pending the outcome of the appeal, the effect of which was that the children continued to reside in Melbourne and lived with the mother during school term eight nights each fortnight and with the father on the remaining six nights.
5. The father’s appeal was heard on 3 March 2016 and dismissed on 28 July 2016. He was ordered to pay the mother’s costs of and incidental to the appeal. These are the orders which are the subject of this application.
6. On 8 August 2016, the solicitors for the father informed those representing the mother that they were instructed to file an application for special leave to appeal to the High Court of Australia. A request was also made of the mother that she not move the children. However, the mother formed the view that she had been delayed by nine months from giving effect to the orders of the primary judge and on 12 August 2016 she and the children moved.
7. The mother explains her circumstances thus:
   5. Following the dismissal of the Husband’s Appeal, I made arrangements to move, and did so. I moved with the children to [E Street, Town Z], a rental property, on 12 August 2016. I intend to occupy [E Street] for 6 months, whilst I search to purchase a home. I have capital in the sum of $253,000 from the property settlement with the Husband with which I propose to purchase the home. I executed a lease on 6 August 2016, for a 6 month period. [Town Z] is a town larger than [Town O], about 8 kilometres away. It takes about 12 minutes to travel between the townships.

…

9. I am employed in a part time permanent position as a [medical professional] at [Town O] Secondary College and at [B] High School. My contract commenced in October 2014. Prior to moving to the [Town O] area, as a result of the stay, I was forced to make arrangements which permitted me to keep my job, and implement the orders which were in place with respect to the children’s living arrangements and their time with their father. This was difficult, and required me to have 2 places of residence. I work 28 hours per week and my salary is $58,789 per annum gross.

(Mother’s Affidavit filed 12 September 2016)

8. It is uncontroversial that the children commenced at their new school on 15 August 2016 but the extent to which they are settled is controversial.
9. Counsel for the father informed us that it was proposed the children complete the current term at their new school and return to their former school at the commencement of Term 4 2016.
10. The application for special leave to appeal was filed on 25 August 2016.

The principles concerning a stay pending a grant of special leave

11. Notwithstanding considerable distraction as to whether we or the primary judge should determine the stay application, counsel for the respondent ultimately accepted that the application was properly brought to us (see De L v Director-General, NSW Department of Community Services [1996] HCA 9; (1996) 136 ALR 201).
12. The purpose of a stay is to preserve the subject matter or integrity of the litigation. Before us it was agreed that an application for a stay pending determination of an application for special leave is to be determined in accordance with the principles contained in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No. 1] [1986] HCA 84; (1986) 161 CLR 681, in particular, at 685 as follows:

In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court’s discretion. In each case when the Court is satisfied a stay is required to preserve the subject-matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.

Discussion

13. Turning then to the question of whether a stay is required to preserve the subject matter or integrity of the litigation; in the event the father was to succeed in having the orders set aside and orders were made which required the children to return to Melbourne, this would happen. This is not a case where the children are to be removed from the country or their father’s life. It follows we are not satisfied that a refusal to order a stay would render the father’s application for special leave and any consequential appeal nugatory.
14. In these circumstances it is not strictly necessary for us to consider the remaining Burgundy Royale factors but we will do so. The next question to be answered is thus whether there is a substantial prospect that special leave to appeal will be granted. The criteria for granting special leave to appeal is found in s 35A of the Judiciary Act 1903 (Cth) (“Judiciary Act”) which provides:

In considering whether to grant an application for special leave to appeal to the High Court under this Act or under any other Act, the High Court may have regard to any matters that it considers relevant but shall have regard to:

(a) whether the proceedings in which the judgment to which the application relates was pronounced involve a question of law:

(i) that is of public importance, whether because of its general application or otherwise; or

(ii) in respect of which a decision of the High Court, as the final appellate court, is required to resolve differences of opinion between different courts, or within the one court, as to the state of the law; and

(b) whether the interests of the administration of justice, either generally or in the particular case, require consideration by the High Court of the judgment to which the application relates.

15. In Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460, at 463 – 464, Kirby J explained that in cases applying the Burgundy Royale principles, and where no grant of special leave to appeal has been secured, the question about whether there is a substantial prospect that special leave to appeal will be granted is informed by the fact that “[o]rdinarily, the case will have proceeded through at least two tiers of the judicial process. The would-be appellant’s arguments will have been rejected by the court whose orders are the subject of the special leave application. Only a relatively small proportion of the applications for special leave succeed. To succeed, something more than legal or factual error must usually be shown” (see also JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332).
16. The proposed grounds of appeal (and thus special leave questions) concern the meaning and application of s 65DAA of the Act and whether the orders of the primary judge amounted to “substantial and significant time” as that expression is used in s 65DAA(2). In particular, whether the orders enabled the father to be involved in the children’s “daily routine” as per s 65DAA(3)(b)(i) of the Act. Although the decision to dismiss the appeal was a majority decision, the Full Court was united in its approach to the meaning of the words “substantial and significant time” and “daily routine”. Where the Full Court disagreed was first, whether, having regard to the totality of the facts as found, substantial and significant time was actually ordered, and secondly, whether certain factual findings were open to the primary judge on the evidence. There was no difference of view in relation to a question of law or principle.
17. Otherwise, the application for special leave seeks to raise questions concerning the application of s 65DAA of the Act and the extent to which those provisions may be considered simultaneously and/or by reference to findings made elsewhere in the reasons for judgment.
18. When regard is had to s 35A of the Judiciary Act we are of the view the father has not demonstrated a substantial prospect that his application will be granted.
19. As to the second criterion, it is accepted the father has done all that is required of him in pursuing this application for a stay in a timely way.
20. In relation to the third and fourth criteria, we set out earlier the mother’s circumstances and why she chose to give effect to the orders of the primary judge. The grant of a stay would cause her obvious significant inconvenience and deprive her and the children of the benefits of orders which the primary judge was satisfied were in the best interests of the children. We struggle to see how, in the circumstances of this case, the interests of the children would be promoted by, in effect, orders which would require the mother to re-establish a home in Melbourne and, for the children would probably result in a heightened sense of instability about their future living arrangements. In this respect, it needs to be understood that although the children’s time with the father during school term has been significantly reduced, the children continue to see him every week and he lives about one and a half hours drive from them. It follows that the grant of a stay will cause “loss” to the mother, and we are satisfied that the balance of convenience lies with her.
21. The application will be dismissed with costs.