Atwood and Atwood (No 2)

[2019] FamCA 1020

FAMILY COURT OF AUSTRALIA

ATWOOD & ATWOOD (NO. 2) [2019] FamCA 1020

FAMILY LAW – ORDERS – Stay – Where the mother seeks a stay of final orders made in relation to property and parenting – Where a Notice of Appeal has been filed against those orders – Where the appeal would not be rendered nugatory if the stay was not granted – Where the granting of a stay would not make any practical difference to the parties’ situations – Where there is no utility in granting a stay of the majority of the orders – Where a select few of the orders had not yet been complied with – Where the father does not press the operation of those orders – Stay granted in regards to those select few orders – Application otherwise dismissed.

APPLICANT: Ms Atwood

RESPONDENT: Mr Atwood

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 3943 of 2014

DATE DELIVERED: 20 December 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 20 December 2019

REPRESENTATION

APPLICANT: Appeared in person

RESPONDENT: Appeared in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Karagiannis

Orders

1. The operation of Orders 7, 13 and 18 made on 20 September 2019 be stayed pending the determination of the wife’s appeal against the orders of 20 September 2019.

2. The stay is granted on the condition that the mother diligently prosecutes her appeal.

3. Otherwise the mother’s application for a stay filed on 27 November 2019 is dismissed.

Note:  The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC3943 of 2014

Ms Atwood

Applicant

And

Mr Atwood

Respondent

REASONS FOR JUDGMENT

1. These are proceedings commenced by the mother’s application filed 27 November 2019 in which she seeks a stay of the operation of some of the orders that were made by this Court on 20 September 2019.  Those orders were made in final proceedings - parenting proceedings in relation to the parties’ son, B, and in relation to property settlement. 

2. It seems to be an agreed fact that there is an appeal on foot in relation to, among others, the orders that have been identified in the application for a stay, and as far as I know, the mother has not been advised that her Notice of Appeal has been struck out.  She understands there have been some procedural problems and work is being done in the appeals registry about that.  The father formally opposes the granting of a stay, but it falls to the Court to determine the matter.

3. There are a number of categories of orders.  Firstly, in relation to the parenting orders, the mother seeks a stay of the orders that have B live with the father; that the father have sole parental responsibility for him; that the mother spend no time with the child; and an order about a passport being provided for the child.  A stay would have no practical effect in relation to any of those orders.  Such a stay would restore the position that applied before those orders were made and that in turn, would leave the situation as it is now.  Staying those orders neither renders the mother’s appeal nugatory, nor would it interfere in any way with the father’s rights or the arrangements for B.  The mother’s application will be dismissed in relation to those orders.

4. Paragraph 7 of the orders required the father to have the child attend upon a Family Consultant and if convenient, in the company of the Independent Children’s Lawyer, for the purpose of the orders being explained to the child.  For reasons that have not been explained to me, that order has not been complied with.  There is no harm in staying the order.  The father does not oppose it.  I will stay the operation of that order.

5. The next order is order 13 which is an order that the mother pay half of the costs of the father of and incidental to the proceedings, such costs to be agreed or assessed by a taxing officer.

6. Again, I would assume that a stay is unnecessary because I apprehend there will be no agreement between the parties about the costs and the processes of taxation would take some time.  However, for more abundant caution, and in circumstances where the mother is worried about the issue, the father does not strongly oppose a stay and he has taken no action to prosecute the order, I will grant a stay of that order.

7. The next order that is sought to be stayed is a splitting order which requires the trustee of the father’s superannuation fund to cause an amount based on a sum of $62,400 to the subject of a split in favour of the mother.  For reasons that I cannot quite understand, the mother wants that order stayed.  As I understand it, her complaint in the appeal is not that that order should not have been made but that the quantum of the base amount is too low.

8. I do not really understand why that order could not be carried out, and then if the Full Court grants the appeal and a different base amount is ultimately specified, then that could be adjusted later.  However, the father is not aggrieved by the operation of this order being stayed.  No action has been taken under the order.  The mother has not done what she had to do under the terms of the orders, and there has been no enforcement of those obligations.  On balance, no harm is done by the stay.

9. Next, the mother seeks a stay of two notations.  An appeal is against orders and I do not really understand the utility of a stay of a notation.  The first of the notations is based on advice from the trustee of the father’s fund that in order to make an effective split, the trustee would need to know certain details about the mother.  In order to assist the mother I referred to those requirements by way of a notation in the orders.  Staying the notation would not change the fact that the trustee requires that information.  I do not see any utility in staying the notation.

10. Secondly, the father asked the Court through his solicitor to record that he intended to make no claim in relation to the mother’s copyright in future works.  The mother, I think, to be fair to her, does not oppose that per se, but she thinks that the device “written works” might exclude electronic products.  I am not sure that that is true.  For example “document” is often broadly defined to include a digital thing.  I suspect that if there was to be an interpretation of the notation, “written” might be generously interpreted to something more than something written on paper.  Of course the mother is entitled to her concerns.

11. As I explained in the substantive proceedings, in my view this was not an issue that the Court could do anything about in the course of proceedings for property settlement.  There are copyright laws, and this Court does not normally exercise jurisdiction in that area.  The mother was concerned about something that might come into being in the future, and she did not want to have any claim made by the father against her rights in relation to future works.  I made a notation of a concession made on behalf of the father, by way of seeking to mollify the mother about those concerns.  Again, in my view, there is no utility in appealing against such a notation and therefore a stay of the notation is unnecessary.

12. Stays are not generally granted as a matter of right, but they are sometimes granted in aid of an appeal.  The competing interests are the right of the person who has the benefit of an order to the order being carried out, the fruits of the litigation, and that is weighed against the prejudice that would apply to the appellant if the stay is not granted.  In some circumstances, without a stay, the appeal might be rendered nugatory.  I gave the example today of an appeal against selling a house.  Once it is sold, it is sold, and the appeal would be rendered nugatory if that was what the appeal was about.

13. As I have indicated, there is no utility in staying most of the orders which the mother seeks to stay.  The lack of a stay would not render the mother’s appeal nugatory, and because of the previous orders that were made, they would make no difference in practice.  I will stay order 7 which was about B going to the Family Consultant, order 13 about the operation of the costs order and order 18, the splitting order, that has not been complied with.  Otherwise the mother’s application will be dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 20 December 2019.

Associate: 

Date:  8 January 2020