Ganem and Ganem and Anor

[2015] FamCA 377

FAMILY COURT OF AUSTRALIA

GANEM & GANEM AND ANOR [2015] FamCA 377

FAMILY LAW – APPLICATION IN A CASE – Application for a stay of parenting and property orders – Application for reinstatement of previous parenting orders – Whether there is a proper basis for the stay – Where the father has no contact with the child – Where the father alleges sexual abuse of the child by the mother’s new boyfriend – Where it is found that unacceptable questioning of the child in relation to abuse would occur if the father is permitted to spend time with the child – Where it would not be in the best interests of the child to grant a stay of the parenting orders – Where there is no basis for a stay of the order to pay outstanding school fees – Where there is no basis for a stay of the order to pay receivers’ fee – Application dismissed.

Family Law Act 1975 (Cth)

Ganem & Ganem [2014] FamCA 1177
Gronow v Gronow [1979] HCA 63
Trahn & Long(No.2) (2008) FamCAFC 194

APPLICANT: Mr Ganem

RESPONDENT: Ms Ganem

INTERVENOR: Mr B and Mr A

INDEPENDENT CHILDREN’S LAWYER: Watts McCray

FILE NUMBER: SYC 931 of 2012

DATE DELIVERED: 24 April 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 24 April 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ganem in Person

COUNSEL FOR THE RESPONDENT: Ms Barnett

SOLICITOR FOR THE RESPONDENT: Mason Mia & Associates-Solicitors & Advocates

SOLICITOR FOR THE INTERVENOR: In Person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Barnett

Mason Mia & Associates-Solicitors & Advocates

CLH Lawyers

Watts McCray

Orders

1. That the Application in a Case filed by the Husband on 12 March 2015 is dismissed.

2. That on a without admissions basis, I make Orders 3 and 4 as outlined in the Response to an Application in a Case filed by the Wife on 20 April 2015, set out herein:

3.That within 14 days the Interveners/Receivers cause to be removed the Caveat Lodged by them upon the real property situated at and known as O Street, L Town, NSW … being the whole of the land contained in Certificate of Title Folio Identifier … (“the L Town property”).

4.That within 14 days the Receivers cause to be removed the Caveat Lodged by them upon the real property situated at and known as E Street, Suburb H NSW, … being the whole of the land contained in Certificate of Title Folio Identifier … to … (“the Suburb H property”).

1. That leave is granted to the Respondent Wife and the Intervener to make an application for costs this day.

2. That any evidence or letters quantifying costs, for the purposes of seeking costs in a specific sum, are to be served upon the Husband on or before 28 April 2015.

3. That, on or before 27 May 2015, the Husband is to file and serve any affidavit material he seeks to rely upon in relation to costs.

4. That the costs applications are to be heard by me on 2 June 2015 at 9.30 am.

5. That all parties, other than the Husband, are excused from personal attendance on 2 June 2015.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ganem & Ganem and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 931 of 2012

Mr Ganem

Applicant

And

Ms Ganem

Respondent

And

Mr B & Mr A
Intervenor

And

WATTS McCRAY
Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. By an Application in a Case, filed on 12 March 2015, Mr Ganem (“the father”) seeks the following orders:

   (1)A stay of orders 1, 3, 10, 11, 30, 31, 35 and 36 in orders made by Aldridge J on 24 December 2014;

   (2)Order made by Aldridge J on 17 May 2013 reinstated, thereby providing applicant father access to K (“the child”) from 23 March 2015.

2. The application is in support of the father’s appeal from the final orders as between him and Ms Ganem (“the mother”) that were made on 24 December 2014. 

3. On 21 January 2015 the father filed a Notice of Appeal which contained the following five grounds of appeal:

   (1)Trial Judge gave too much weight to the Family Consultant, Ms Q, written report dated 9 September 2014.

   (2)Trial Judge gave insufficient weight to the oral evidence of the Family Consultant, Ms Q.

   (3)Trial Judge gave insufficient weight to the oral evidence of the Mother.

   (4)Trial Judge gave insufficient weight to the evidence of the Appellant Father

   (5)      Trial Judge gave too much weight to the interveners evidence.

4. The Notice of Appeal sought the following orders:

   (1)The child of the marriage, [K] born … 2006 (“the Child) live with the Appellant Father.

   (2)      In the alternative,

   (a)      the Child live with the Respondent Mother;

   (b)      the Child spend time with the Appellant Father as follows:

   i. each alternate weekend from 10.00am Saturday to 6.00pm Sunday

   ii. one-half of each school holidays beginning with second half commencing 6.00pm on the day which is mid-point in the holidays and concluding 4.00pm on the last day of the school holidays.

   (3)The interveners remuneration be assessed by an independent consultant.

   (4)Once independently assessed, the interveners remuneration be paid from the assets of the [Ganem] Partnership and [Ganem] Services Pty Ltd

5. It can be seen from that Notice of Appeal that the father was effectively appealing against two matters.  The first was the parenting orders made in relation to the child of the parties.  The second was the orders made in relation to the fees of the receivers and managers appointed by Ryan J in December 2012.

6. On 10 March 2015, the father filed an Amended Notice of Appeal which sought to include a ground of appeal dealing with the orders in relation to the payment of the school fees at L Town College.

7. Further, by an Application in an Appeal, which is yet to be filed, the father seeks the following orders:

   (1)Leave be granted to adduce further evidence, being the affidavit of [Mr JA] sworn 21 April 2015 annexing a copy of the Expert Valuation Report of [Mr JA] dated 15 April 2015;

   (2)Leave be granted to amend the notice of appeal to include the following grounds of appeal:

   (i)There has been a miscarriage of justice in that the respondent’s expert evidence as to the value of the property at [E Street, Suburb H] was grossly inaccurate and prejudicial to the appellant;

   (ii)If order 2 of the application in an appeal is granted there would be a fourth area of consideration, namely, the valuation of the [Suburb H] property.

8. In support of the proposed Application in an Appeal, the father made an oral application for a stay of Order 17 made on 24 December 2014, being the order that provided for the transfer of the Suburb H property to the mother.  Because there are, effectively, four separate applications, I will consider them separately.  In doing so I will have regard to the principles as to stays which were conveniently summarised by the Full Court in Trahn & Long(No.2) (2008) FamCAFC 194 as follows, at [38]:

   38.These principles, both in the general law and in respect of parenting proceedings, are well settled (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (1986) 160 CLR 220 at 230; Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685. Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; Clemett and Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter included the following:

   ·   the onus to establish a proper basis for the  stay is on the applicant for the stay however it is not necessary for the applicant to demonstrate “special” or “exceptional” circumstances;

   ·   a  person who has obtained a judgment is entitled to the benefit of that judgment;

   ·   the person who has obtained a judgment is entitled to presume the judgment is correct;

   ·   the mere filing of an appeal is insufficient to ground a stay;

   ·   the bona fides of the applicant;

   ·   a stay may be granted on terms that are fair to all parties – this may involve a court weighing the balance of convenience and the competing rights of the parties;

   ·   a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether  it will be appropriate to grant the stay;

   ·   some preliminary assessment of the strength of the proposed appeal - whether the  appellant has an arguable case;

   ·   the desirability of limiting the frequency of any change in a child’s living arrangements;

   ·   the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of a stay for a short period of time; and

   ·   the best interests of the child the subject of the proceedings.

9. The parenting orders that were made provided for the mother to have sole parental responsibility for the child, that the child live with her mother and that the father spend no time with the child.  There was also an order restraining the father from approaching or going within 100 metres of the mother or the child, communicating with them or harassing, molesting, intimidating or stalking the mother or the child.

10. The father seeks a stay of the first three orders pending the determination of his appeal and a reinstatement of the interim arrangement in relation to the child that was in place from 24 April 2013 until December 2014. That arrangement provided that the child spend time with the father for two hours every second week at a contact centre in L Town. 

11. The evidence is that since the making of the orders in December last year the child has not spent time with her father and has been told that she will not be seeing him again. 

12. In dealing with the application for a stay of the orders and a reinstatement of the previous parenting arrangement, it is not necessary for the father to demonstrate special or exceptional circumstances, but he is required to establish a proper basis for the stay.

13. A person who has obtained a judgment is entitled to its benefit and to presume that the judgment is correct.  The mere filing of an appeal is insufficient grounds for a stay.  It was not submitted that there was any lack of bona fides on the father’s part in bringing either the appeal or the stay application.  The father said that there were three main grounds for a stay.  He submitted that if there was no contact between him and the child that could affect the outcome of any re-hearing and, effectively, render his appeal nugatory.  I infer from that he regards the delay that would occur, pending the hearing of the appeal and any re-hearing when he has had no contact with the child, would make it more difficult and possibly impossible to re-establish a relationship between the two of them.

14. The second point is, that as the child’s father, he needs to protect her from harm.  In particular, the father made an allegation that the child reported to him that she had been assaulted by the mother’s new boyfriend.  He remains concerned that she will continue to be the subject of harm but that if contact resumes between the two of them, he is confident that at some stage the child will tell him of what is occurring so that he can then take steps to protect her physical safety and her psychological wellbeing. 

15. Finally, he asserts that it would be impossible to make up for the lost time between them if the appeal was successful, asking who would compensate both he and the chid for that lost time.

16. It is necessary to consider the strength of the appeal having regard to those submissions. 

17. The father said that on 27 January 2013 the child said, in relation to the mother’s boyfriend, “My bum hurts.  He put his finger up my bum”.  That allegation was the subject of investigation by the police.  The view of the police was that there were no fears held for the child’s safety and none were held by the father.  After taking into account the parties’ evidence, including the evidence of the mother, her boyfriend and the family consultant, I found that the evidence fell well short of establishing that the child being in the presence of or with the boyfriend would expose her to an unacceptable risk of sexual abuse.

18. The Notice of Appeal does not point to any finding of fact that is said to be wrong in relation to that finding.  Indeed, there is no specific ground addressed to it at all.  It is difficult to understand the first two grounds of appeal, the first of which says that I was in error in giving too much weight to the written evidence of the family consultant and the second says that I gave insufficient weight to her oral evidence.  The oral evidence of the family consultant was that on the facts and circumstances of which she was aware, including the allegation made by the father, that the risk of the child being sexually abused by the boyfriend was no higher than the risk of being sexually abused by any adult male, including the father.

19. Whilst other persons may come to a different view based on that unchallenged evidence, the ground of appeal, to the extent that there is one against that finding, would not be regarded as strong. 

20. The major reason for the orders that were made was the toxic relationship between the parents and their inability to protect the child from it, which I noted in my reasons for judgment of 24 December 2014:

    85.I accept the evidence of the Family Consultant.  I find that the only way to deal with the toxic behaviour of the parents which is psychologically abusive of her is to remove her from the conflict.  The views of the parents are intractable.  I cannot see that the mother will support any significant time of [K] with her father.  The father, on the other hand, said that he would rather [K] live with a foster family than with her mother. 

    86.It follows that the benefit of [K] having a meaningful relationship with her father is outweighed by the psychologically abusive position she will be put in in having to move between time with her mother and with her father.  This matter supports [K] either spending no time with her father or spending supervised time with her father.

21. The father himself said at the hearing that it was time to move on from supervised time, that he was tired of being seen as a criminal and agreed with the family consultant’s view that supervised time should be terminated and a decision made one way or another as to where the child should live.

22. The challenge to this finding was one of weight.  On the assumption that the first four grounds of appeal refer to the parenting orders, they are all grounds which refer to the weighing of evidence.  This is a difficult basis on which to base a successful appeal: see Gronow v Gronow [1979] HCA 63; 144 CLR 513 at p 519. Again, although it is possible that different judges may see the same facts differently, I am of the view that the prospects of success overall on the parenting appeal should not be regarded as anything other than low.

23. A very significant aspect of appeals of stay applications in parenting cases is the benefit to the child. Although, strictly speaking, an application for a stay is not a parenting order, the best interests of a child remain critical.  Here the key factor is the change to the child’s care.  If the orders proposed by the father are made, the contact that continued between them up until December last year and then ceased from December until nearly the end of April will be reinstated.  If the appeal is unsuccessful that time will then end, leading to a number of changes in the parenting arrangements in relation to the child over a short period of time.

24. The countervailing consideration is, however, the delay in hearing the appeal.  The father’s concern is that his opportunity to re-establish a relationship with the child will be lost if there is too much delay and time is not reinstated.  Each of those is a valid consideration but the task is, effectively, to choose between them.  The evidence is that the child has been told of the orders and there is evidence that she is now more settled and no longer seeing her school counsellor.  As the father made very plain, he has a very strong motive to protect the child from what he sees as the ongoing risk of physical and psychological harm being in the mother’s care, and, in particular, being exposed to the mother’s boyfriend. 

25. As I recorded earlier, he says it is likely that if he has contact with the child she will tell him of any concerns she may have, thus leading to her protection.  In my reasons I said at [112]:

    …It is clear that the father inappropriately and excessively questions [the child], particularly about the mother’s relationship with [the mother’s boyfriend].  This was noted by the workers at [IO Org] and was also a subject of complaint by the child to the family consultant.

26. Although the father repeated the submissions that he had previously made before me today that he did not inappropriately question the child at IO Org, that was not the evidence as recorded by the workers at that centre.  It is more likely than not that given the father’s strong desire to protect the child from the mother’s boyfriend and his strong and firm belief that the boyfriend was sexually abusing her, that there will be continued questioning if contact resumes and that questioning would continue to be excessive and inappropriate and not in the child’s best interests.

27. Resumption of contact would again require the parties to deal with each other.  It is true that that may be on a limited basis, at least insofar as the parents coming into day to day contact with each other. However the child would still be in the middle of a highly toxic relationship, in respect of which the family consultant found, and I agreed, that the parties were not able to protect the child.  The resumption of time would reintroduce her into that toxic relationship.  These concerns, when added to the findings that are made in the judgment as to how the child’s best interests would be served, lead me to the conclusion that the best interests of the child will be maintained by refusing the application.

28. It is true that this may mean there will be a long delay before there is an attempt to re-establish a relationship between the child and her father in the event that the appeal and any rehearing is successful, which, as I found, is not likely.  However there is force in the submissions of the Independent Children’s Lawyer (“ICL”) that the child will not forget her father and that the prerequisites for any resumption of the relationship, if found to be desirable, would remain.  In the reasons for judgment I found that the child would benefit from a meaningful relationship with her father but that any such benefit would be outweighed by the psychologically abusive position she would be put in in having to move between time with her mother and her father.

29. The finding that there is presently a meaningful relationship supports the ICL’s submissions that, in due course, if it is found desirable that there be such a relationship, it can be re-established.  However, as I found, the toxic nature of the relationship and its effects on the child and my concerns about the questioning of the child, support the refusal of the stay. 

30. Taking into account all the matters discussed above, I am not satisfied that the father has established that there should be a stay of the orders and the reintroduction of the earlier parenting arrangement.

31. I made an order that the father be solely liable for all monies owed to Y School L Town in respect to their son’s school fees for 2013, that he indemnify the mother in respect of that debt and that he is to pay all the fees outstanding in relation to proceedings taken by the school to recover that debt in the Local Court at L Town.  The school fees were the subject of a consent order made on 26 March 2012.  There was no appeal against that order for obvious reasons.  I, for the purposes of the hearing, treated the father’s opposition to the payment of those school fees as an application to set aside that consent order.

1. At [249] of my reasons I said:

   … No change in the circumstances of any significance that has occurred since then such as would make it just to set aside or vary the order have been identified let alone established and I do not propose to vary it.

2. It is difficult to see on what basis, then, an appeal would succeed.  Since then the father  has consented to a judgment against him by Y School L Town.  Any stay of the orders I make will not affect that.  There seems, therefore, to be no purpose for the stay.  Given that course and having regard to what I regard as the low prospects of success and the failure to identify any real basis for the stay, there ought not be a stay of that order.

3. I made an order that the fair and reasonable remuneration of the receivers appointed by Ryan J on 5 December 2012 was $96 727.17 and required the father to pay that sum within 28 days.  The order made by Ryan J was not the subject of an appeal.

4. Thus, the only appeal order against which the father could properly appeal was the quantification of those costs, not whether the cost should be paid or not.  He did not suggest that no costs should be paid to the receiver; therefore, the question was simply how much.

5. The father did not call any evidence to challenge the receivers’ fees or to say they were excessive but he did cross-examine one of the receivers and an employee of the receivers at length about those fees.  I was not satisfied that there was any basis for challenging the receivers’ fees.  Again, although other judges might see the evidence differently, I would not regard the prospects of success on this appeal as high.

6. There is no evidence to suggest that any payment of the fees to the receivers would render the appeal nugatory.  There is no suggestion that the receivers would not be able to repay to the father any amount determined on appeal or rehearing to be excessive. The precise quantification of what that excessive remuneration might be remains unknown.  There is no suggestion by the father that he will take steps to set aside funds or to protect assets in such a way as to ensure that, if he were to appeal and the appeal was unsuccessful, that the receivers would be paid in any event; indeed, he made an oral application that the caveat over property securing payment of those fees be removed so he could sell the property.  Again, the onus is on him to satisfy the court that there was a proper basis for the stay.  I am not satisfied that any has been established.  Accordingly, the Application in a Case filed on 12 March 2015 is dismissed. 

7. Finally, the father foreshadowed an appeal in relation to the Suburb H property, as foreshadowed in the Application in an Appeal referred to earlier.  At the hearing, the father agreed with the respondent that the Suburb H property had a value of $810 000.  It will be very difficult for him successfully to appeal against a finding arrived at by an agreement as to its value.  The fact that he has now obtained a different valuation does not, of itself, lead to a reconsideration of his agreement to have the property regarded by the court at that value.  If his agreement to that valuation was obtained by fraud, the remedy is not an appeal.  In those circumstances, there is no basis for a stay of that order.

8. In the response to the Application in a Case, the mother sought orders that the receivers cause their caveats lodged by them over O Street, Town L and E Street, Suburb H, be removed.  Those two properties are the properties that mother is to receive as a result of the orders made 24 December 2014. 

9. The orders of Ryan J of December 2012 provided that the father is to pay the receivers’ fees but that the receivers’ costs were to be secured over partnership property.  Suburb H was partnership property but, pursuant to the orders, has ceased to be so.  The receivers do not oppose, on a without admissions basis, the orders sought. 

10. The father opposes the removal of the caveat on Suburb H, saying it may be necessary to secure payment of the receivers’ fees by the partnership if he is otherwise successful on the appeal.  Having regard to the fate of the stay application and matters referred to in the judgment, and in particular the agreement of the receivers, I will make, on a without admissions basis, Orders 3 and 4 as set out in the Response to an Application in a Case filed on 20 April 2015. 

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 24 April 2015.

Associate:

Date:  25 May 2015