Markwell & Solberg & Anor (No.2) [2020] FCCA 2462 (3 September 2020)

Last Updated: 9 September 2020

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARKWELL & SOLBERG & ANOR (No.2)

[2020] FCCA 2462

Catchwords: FAMILY LAW – Application for stay of parenting orders pending appeal – stay refused.

Legislation: Family Law Rules 2004 rr.22.11(1), 22.11(3)

Applicant:

MS MARKWELL

First Respondent:

MR SOLBERG

Second Respondent:

MR RANWICK

File Number:

CAC 1533 of 2014

Judgment of:

Judge Hughes

Hearing date:

7 August 2020

Date of Last Submission:

7 August 2020

Delivered at:

Canberra

Delivered on:

3 September 2020

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the First Respondent:

Mr Nicholls

Solicitors for the First Respondent:

Chamberlains Law Firm

Counsel for the Second Respondent:

Ms Evans

Solicitors for the Second Respondent:

Evans Family Lawyers

Counsel for the Independent Children’s Lawyer:

Mr Ridge

Solicitors for the Independent Children’s Lawyer:

Barker & Barker

ORDERS

(1) The mother’s application for a stay of the orders of 30 June 2020 pending appeal is dismissed.

(2) For the purpose of the orders of 30 June 2020, until the mother relocates to the Canberra district the child B shall spend time with her mother as follows:

(a) every second weekend from 5.30 pm Friday to 5.30 pm Sunday, commencing today 7 August 2020;

(b) for half school holidays in accordance with the orders dated 30 June 2020 (which provide the particulars for such time); and

(c) such additional or alternate times as agreed.

(3) Unless otherwise agreed the handover of B shall occur at the Town F Service Centre on the G Highway at the beginning of each period and at the main carpark at Town CCC at the end of each period.

(4) For the purpose of the orders of 30 June 2020, the time D spends with her father shall recommence on Wednesday 12 August 2020.

(5) Whilst the mother continues to live in Town R the handover of the D shall occur at the DDD Service Station in Town R.

(6) Each parent shall take all steps necessary to comply with Government COVID-19 safety requirements for themselves and the children.

(7) Each parent is restrained from taking the children or either of them outside of the ACT and NSW or allowing anyone else to do so without the prior written consent of the other parent or a Court order.

(8) In the event of any of the parents notifying or causing any other person to notify either the police or a prescribed child welfare authority that either or both of the children have been or are the subject of actual or potential abuse or neglect or other form of harm, the notifying parent shall simultaneously, or as soon as possible thereafter, provide to the person to whom the notification is made:

(a) A copy of these Orders;

(b) A copy of the Orders dated 30 June 2020; and

(c) A copy of the Reasons for Judgment dated 30 June 2020.

(9) By consent the time for compliance by the mother with order 8 of the orders dated 20 July 2020 (the filing of an initiating application in relation to property settlement) is extended to 10 August 2020.

(10) Noting that Mr Solberg and Mr Ranwick have applied for a costs order against the mother which the Court had insufficient time to consider today:

(a) each of Mr Solberg and Mr Ranwick shall file and serve submissions in support of the application for costs by 28 August 2020;

(b) the mother shall file and serve any submissions in reply by 11 September 2020;

(c) Mr Solberg and Mr Ranwick shall file and submissions in reply by 18 September 2020.

(11) Otherwise all extant applications are hereby dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Markwell & Solberg & Anor (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA

CAC 1533 of 2014

MS MARKWELL

Applicant

And

MR SOLBERG

First Respondent

And

MR RANWICK

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for a stay in the operation of parenting orders made on 30 June 2020, pending the mother’s appeal from those orders. The application was heard on 7 August 2020. I refused the stay and gave brief oral reasons at the time. I indicated I would provide written reasons for the decision at a later date. These are those reasons.

Background

2. The primary proceedings involved parenting arrangements for two children, B, aged ten and D, aged three. B’s father lives in Canberra and D’s father lives in Town E, NSW. The proceedings began when the mother unilaterally relocated with both children from Town E, to City J, Victoria, after the end of her relationship with D’s father. The mother was ordered to return the children to the Town E district on an interim basis. She lived throughout the proceedings in Town R, NSW, a small town between Town E and Town F.
3. There were multiple interim hearings prior to the trial, which ran over eight days. Although the mother presented a good case for relocation, ultimately her application was refused. The reasons for that decision are set out in the judgment delivered on 30 June 2020. In summary, I was satisfied on the evidence that there were problems with the mother’s mental health and personality functioning and that she could not be trusted to facilitate a healthy and meaningful relationship between each child and her father. I was satisfied that it was essential for the wellbeing of the children that they live close enough to their respective fathers to spend either equal time or significant and substantial time with them. This was not only because the children have a right to a meaningful relationship with both parents, but also because it was a means of reducing the risks to which the children would be exposed if they lived primarily with their mother and had limited time with their fathers. I ordered that, if the mother lived anywhere that made a shared arrangement impracticable, each child was to live with her father.
4. The mother filed a Notice of Appeal on 27 July 2020. In it, she asks the Full Court of the Family Court to overturn my decision and to re-exercise the discretion to permit her to relocate to City J with the children, to give her sole parental responsibility and to permit only professionally supervised time between the children and their respective fathers in City J. In the alternative, she seeks orders for her relocation application to be remitted and heard by a different judge on an expedited basis.

The legal principles

5. The lodging of an appeal does not automatically stay the operation of the appealed orders.^[1] A stay is a discretionary order and must be determined on the facts of the case. As a general principle, a successful litigant should not be “deprived of the fruits of their litigation”. However, a stay is more likely to be granted where a refusal would render the appeal nugatory. Matters to be taken into account in the exercise of the discretion include the merits of the appeal and the likely time before the appeal is heard. A stay is not a parenting order. Accordingly, the best interests of the children are not the paramount consideration but are, nevertheless, a relevant matter to be considered.

Discussion

6. The Family Law Rules 2004 require that the judge who made the order under appeal hear any application for a stay.^[2] This puts the judge in the awkward position of having to assess the merits of an appeal against their own decision. There are 26 grounds of appeal which encompass actual and perceived bias against the mother, procedural unfairness, unsustainable findings of fact and misapplication of the law. Counsel for each of the respondent fathers submitted that the grounds of appeal lack merit. This is unsurprising, given they oppose the stay. However, the independent children’s lawyer, who has an important and independent statutory function, concurred.
7. In this case, a refusal to grant the stay will not render the mother’s appeal nugatory. She wishes to relocate to City J with the children and, if successful on the appeal, will either be given that opportunity or at least the opportunity to persuade another judge that she should be permitted to do so.
8. Enquiries made by my associate indicate that, unless expedited, the appeal is likely to be heard somewhere between March and June 2021. The mother has applied for expedition of the appeal but there are no obvious features of the matter which suggest it is likely to be expedited ahead of other matters.
9. The granting of the stay would mean the children would continue to live with their mother in Town R, NSW. Throughout the substantive proceedings, the mother repeatedly referred to the unsuitability and undesirability of her and the children continuing to live in Town R because of its relative isolation, the lack of services and facilities for the children and the lack of opportunities for the mother to work. All of these issues would be addressed by the mother moving to Canberra, as she said she would in the event she was not permitted to relocate to City J.
10. The mother said she has not moved to Canberra as she has not yet been able to find accommodation. She referred to evidence she gave in the trial that she had been “blacklisted” on TICA, a national tenant database, as a result of the condition in which she left her premises in Town E in 2017 and for which, she said, D’s father was responsible. The mother did not produce any independent evidence of the blacklisting. It did not prevent her obtaining private rental accommodation in City J when she moved there from Town E. I accept that the TICA issues did not affect her accommodation in Town R as she obtained that accommodation through a support service.
11. The mother also referred to evidence she gave in the trial about being unable to move to Canberra because of outstanding traffic fines in Canberra, which would prevent her obtaining an ACT drivers licence. That issue was addressed in the trial by Mr Solberg offering to pay the fines (for which the mother said he was responsible in any event).
12. These issues are examples of various contradictory propositions put by the mother in the trial, on the one hand saying she would move to Canberra and, on the other hand, saying she could not. Her final position was that she would definitely move to Canberra. I accept that obtaining accommodation in Canberra may take time. That was acknowledged in the judgment and specific orders made for B to live with her father until the mother moved.
13. D remains living primarily with her mother. A stay of the orders will have no significant impact on the amount of time she spends with either parent. The orders of 30 June 2020 consolidate the time with her father into a single five day/four night block each fortnight as opposed to the arrangement under the interim orders in which she spent six days/four nights with her father spread over the fortnight.
14. The major impact of the granting or refusal of the stay will be on B’s living arrangements. The orders of 30 June 2020 provide for B to live week-about with each parent in Canberra (or surrounds). Until the mother relocates to Canberra, B will live with her father and spend time with her mother as agreed between the parties. My assessment was that B’s father, Mr Solberg, was supportive of B having a positive relationship with her mother and would facilitate as much time with her as practicable, depending on where the mother was living. I indicated on 7 August 2020 that my expectation was that, if the mother remained living in Town R, B would spend every second weekend with her during school term. I was told that Mr Solberg had, indeed, suggested that arrangement to the mother which was only complicated by a lack of knowledge about what restrictions, if any, the mother was subject to, having recently returned from Victoria (which was significantly impacted by COVID-19).
15. By consent, B spent the whole of the mid-year school holidays with her father. In accordance with the orders of 30 June 2020, she changed schools at the beginning of term three, which commenced on 20 July 2020. The parents had agreed to B seeing a child, adolescent and family psychiatrist, Dr EEE, on referral from B’s GP in Town R. The father took B to that appointment on 15 July 2020. A report from the psychiatrist to the GP is annexed to the mother’s affidavit filed on 30 July 2020.^[3] The relevant part of the report is as follows:
    • Mental State:
    • B presented as an intelligent, mature for age girl, who spoke freely and spontaneously. Her mood was happy and her affect appropriately so. She spoke of both parents affectionately, saying she is pretty happy when she is with her father, she does not miss school, and she loves school, both because of learning new things as well as seeing her friends whom she misses and will miss when she leaves. She expressed unhappiness about the many moves she has had to make and about having to leave her friends and catch up with learning each time. She sleeps well and eats well when there is certainty. More recently, her sleep has been disturbed, she has been having headaches, has thrown up and expressed anxiety about the change. She was also worried not having seen her father, who lives in Canberra with his partner, and who said he missed her. She is aware that she becomes anxious around change, and also that she worries about each parent when she is with the other.
    • Diagnosis:
    • 1. Adjustment disorder with anxious mood - she is prone to anxiety prior to making change and takes time to adjust to change.
    • 2. Family stressors maintaining her anxiety - the family law matters appear also to have disturbed her.
    • Recommendations:
    • 1. That stable living be established so as to enable B to enjoy continuity of education, place of abode and friendships, as she could become depressed if the situation continues or recurs.
    • 2. Father would do well to see a counsellor about his own anxiety – he admitted to being a “worrier”.
    • 3. Counselling to be established with mother and B as mother may have difficulty settling down in one place, if there have been several changes over the years.
    • 4. I see no need to review B, unless there is further concern. I will be happy to see her.
16. The mother submitted that, because B was diagnosed with an adjustment disorder and feels anxious about change, she should remain living with her in Town R pending the appeal. It is clear from Dr EEE’s report that B was anxious about changing schools. However, that change has already occurred and B started at her new school on 20 July 2020. Reverting to the previous arrangements may create even more anxiety for her. If I grant the stay and the mother’s appeal is unsuccessful, B will presumably then return to her current school. That will maximise the disruption for B.
17. Another part of Dr EEE’s report suggests that, while B felt anxious about changing schools, she was hopeful this was the last change. This notion seemed to be helpful for B:
    • The last family law court orders were passed, stating that B have the same living arrangements with her parents, but that her mother must move to Canberra, where her father lives permanently. This implies yet another change, hopefully the last. B feels reassured by this.^[4]
18. In her affidavit filed on 30 July 2020, the mother asserted that Mr Solberg had told lies to the psychiatrist in order to manipulate her and influence her report. The lies she referred to were contained in two sentences by the psychiatrist as follows:
    • There has been considerable turmoil in [B’s] life, in that after her parents divorced when she was about 4 years of age, her mother moved frequently in the context of her second and third relationships; and B has, according to her father, “been to 5 schools in 18 months”.
    • [B’s] mother has a new partner and a three-year-old daughter, whom B is very fond of.
19. It is apparent that the psychiatrist mistakenly believed that B’s parents were married and that, since separating from B’s father, the mother has had two relationships, the last of which is continuing and is with D’s father. These are easy mistakes to make when recording a complicated history. The gravamen of Dr EEE’s statement is correct in that there has been significant turmoil in B’s life. It is also true that B has been to five schools, primarily because of moves made by her mother. However, the changes in B’s schools occurred over a period of two years from mid-2018 to mid-2020, not 18 months as stated in the report. Those inaccuracies are insignificant in the context of this case.
20. In the application in a case filed by the mother on 28 July 2020 in which she sought a stay of the orders, the mother also sought changes to the parenting arrangements for both children, rather than a simple reversion to the arrangements in place prior to 30 June 2020. She sought an order for B to spend time with her father every second weekend from Friday afternoon to Sunday afternoon rather than from Thursday to Sunday in accordance with the previous interim orders. Given the father’s relocation from Town F to Canberra after the trial, this reflects the practicalities and is not concerning. However, she also sought an order to restrain Mr Solberg’ partner from spending time with B without supervision. In a supporting affidavit filed on 28 July 2020, the mother alleged that B was at risk of psychological abuse by the father and his partner. She alleged that each of them had said inappropriate things to B designed to alienate B from her mother and sister. I did not entertain any application by the mother other than the stay application. The mother’s assertions about Mr Solberg and his partner are inconsistent with my findings following the trial. The mother may seek to call further evidence in the appeal but that is a matter for the Full Court.
21. The mother also sought orders for D’s time with her father to be reduced to two nights a fortnight, rather than the current four nights. She alleged that Mr Ranwick had unreasonably refused to return D to her care when she returned from City J. The mother had travelled to Victoria with D on 6 July 2020 to pack up her house. While there, the NSW border with Victoria closed because of the resurgence of COVID-19 in Victoria. On 20 July 2020, I made orders for Mr Ranwick to travel under permit to Victoria on 21 July 2020 to collect D. The mother insisted that the father would need to remain in quarantine with D in NSW for 14 days after collecting her. Mr Ranwick was content to do that and a notation to that effect was made to the orders. The mother returned to New South Wales in late July 2020 and requested D’s return. Mr Ranwick refused on the basis that he and D remained in quarantine. He proposed returning her at the end of the 14-day period, 5 August 2020. The mother managed to persuade the police to recover the child on the evening of 4 August 2020.
22. On 5 August 2020, the mother noticed D had a long cut under her foot. She took the child to the Town BB-Town R District Hospital. The hospital notes attached to the mother’s affidavit filed on 7 August 2020 indicate that, on examination, the child looked well and was comfortable with her mother. In relation to the wound, the notes read as follows:
    • Lt foot – along the plantar aspect superficial laceration noted with crusting extending to the web space of third toe at the web space – wound is crusted with hard bottom
    • no active wound bleeding or discharge
    • no wound gaping
    • third toe web space is edematous
    • no redness on the dorsum or proximal extension
    • child is able to weight bear
    • ... ... ...
    • NSW child protection service mandatory reporting done as there is negligence of care
23. From the photographs provided by the mother, the cut to D’s foot looks nasty. However, the parenting proceedings have concluded and I was not prepared to embark on a new set of proceedings. During the trial, I made findings in relation to Mr Ranwick’s parenting capacity. I was well satisfied he could care for D and that he presented no unacceptable risk to her. The evidence presented by the mother in support of the stay did not affect that assessment. Again, the mother may persuade the Full Court to give her leave to file further evidence on the appeal.
24. The mother filed a Notice of Risk on 7 August 2020 in which she alleged both children were at risk in the care of their respective fathers for the reasons set out above. In the Notice of Risk, the mother also referred to an incident in February 2020 involving D which was ventilated in the trial and discussed in the judgment of 30 June 2020.^[5]
25. The matters raised by the mother in the current proceedings are similar to allegations raised by her in multiple interim proceedings prior to the trial and in the reopened proceedings after the decision was first reserved. None of them persuade me that the welfare of the children would be better served by granting the stay.
26. Notably, the independent children’s lawyer opposed the stay.
27. In the absence of any compelling reasons to justify a stay of the orders of 30 June 2020, the application is dismissed.
28. On 7 August 2020 I made other orders, mostly by consent. When the mother returned from Victoria at the end of July 2020, each of the other parties sought proof that the mother had actually returned to live in Town R. This was reasonable in light of statements made by the mother after the trial that she was effectively homeless, as she could no longer live in her supported accommodation in Town R. On 7 August 2020, the mother confirmed that she was now permitted to continue living in the accommodation in Town R. There was also some uncertainty about whether the mother was required to quarantine herself, including from the children, following her return from Victoria. That issue was resolved and orders made to clarify the commencement date of the regular time between each of the children and their parents. Orders were made for handover, depending on where the mother was living.
29. Given the continuing COVID-19 situation in Victoria, both of the fathers were concerned about the mother again taking the children to City J, necessitating further quarantine periods. I restrained each of the parents from removing the children from the ACT and NSW without the consent in writing of the other parent.
30. At the request of the independent children’s lawyer, I ordered that, in the event any of the parents makes a notification to police or a child welfare authority concerning abuse or neglect of either of the children, they must also provide a copy of the orders of 30 June 2020 and 7 August 2020 and a copy of the reasons for decision of 30 June 2020.
31. By consent, the mother was given an extension of time to file her application for property settlement.
32. Counsel for Mr Solberg and Mr Ranwick sought their costs of the stay proceedings but there was insufficient time to deal with that issue that day. Each party was ordered to file written submissions for a determination of the issue on the papers.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Hughes

Associate:

Date: 3 September 2020

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^[1] Rule 22.11(1) Family Law Rules 2004
^[2] Rule 22.11(3)
^[3] At annexure E, page 32
^[4] Mother’s affidavit filed 30 July 2020 at annexure E, page 33
^[5] At paragraphs 108 to 115