Bradshaw & Bradshaw (No 3)
[2023] FedCFamC1F 510
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bradshaw & Bradshaw (No 3) [2023] FedCFamC1F 510
File number: NCC 535 of 2022 Judgment of: AUSTIN J Date of judgment: 23 June 2023 Catchwords: FAMILY LAW – PARENTING – Where the father seeks a stay of final parenting orders pending determination of an appeal – Where those orders require the child to live with the mother and eliminate the father from the child’s life for three months before the graduated restoration of their relationship – Where the father’s appeal would not be rendered nugatory by dismissal of his stay application – Where a stay of the appealed orders would cause disturbance to the child’s residence – Application dismissed – Costs ordered in a fixed sum in favour of the respondent and the Independent Children’s Lawyer. Legislation: Family Law Act 1975 (Cth) Pt VII, s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17
Cases cited: Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106
Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25
Federal Commissioner of Taxation v Myer Emporium Ltd (No.1) (1986) 160 CLR 220; [1986] HCA 13
Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No.1) (1986) 161 CLR 681; [1986] HCA 84
JRN & IEG (1998) 72 ALJR 1329; [1998] 16 Leg Rep 16
Sheldon & Weir (Stay Application) [2011] FamCAFC 5
Trahn & Long (No.2) [2008] FamCAFC 194
Division: Division 1 First Instance Number of paragraphs: 20 Date of hearing: 23 June 2023 Place: Newcastle Counsel for the Applicant: Mr Duane Solicitor for the Applicant: Gillard Family Lawyers Solicitor for the Respondent: Powe & White Lawyers Counsel for the Independent Children's Lawyer: Mr Mooney Solicitor for the Independent Children's Lawyer: Krstina Wooi Lawyer ORDERS
NCC 535 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BRADSHAW
Applicant
AND: MR BRADSHAW
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
AUSTIN J
DATE OF ORDER:
23 JUne 2023
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed by the respondent on 21 June 2023 is dismissed.
2.Save as to costs, the Response to an Application in a Proceeding filed by the applicant on 22 June 2023 is dismissed.
3.The respondent shall pay the applicant’s party/party costs of and incidental to this interlocutory dispute, fixed in the sum of $2,500.
4.The respondent shall pay the Independent Children’s Lawyer’s party/party costs of and incidental to this interlocutory dispute, fixed in the sum $1,650.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Bradshaw & Bradshaw has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
On 26 May 2023, I made orders between the parties to determine their dispute over their only child under Pt VII of the Family Law Act 1975 (Cth) (“the Act”). The orders provided for the child to live with the mother, the elimination of the father from the child’s life for three months, and for the graduated restoration of their relationship thereafter.
On 22 June 2023, the father appealed from those orders. Contemporaneously, by way of an Application in a Proceeding, the father applied to stay the orders and have substitute parenting orders made pending determination of the appeal.
The orders sought by the father were, in summary:
(a)the stay of the appealed orders (Order 2);
(b)the child’s immediate return by the mother to the father (Order 3);
(c)for the child to spend time with the mother at his discretion (Order 4(a));
(d)for the father to have sole parental responsibility for the child (Order 4(b)); and
(e)the costs of the application (Order 5).
In support of the application, the father relied upon his affidavit filed on 22 June 2023 and the content of his Notice of Appeal.
The mother opposed the father’s application by way of a Response to an Application in a Proceeding filed on 22 June 2023, supported by her affidavit filed on the same date. In addition to her rebuttal of the stay application, the mother sought a mandatory injunction compelling the father to surrender certain chattels which belong to the child.
The Independent Children’s Lawyer (“the ICL”) also opposed the stay application.
Stay
The discretion to stay the operation of orders should only be exercised where circumstances exist which justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his or her litigation pending the determination of any appeal (Federal Commissioner of Taxation v Myer Emporium (No. 1) (1986) 160 CLR 220 at 222). Circumstances which may justify a stay of orders pending the outcome of an appeal include the need to prevent the appeal from being rendered nugatory or when there is a real risk it will not be possible for the prospectively successful appellant to be restored substantially to his or her former position if the primary judgment is executed (Federal Commissioner of Taxation v Myer Emporium Ltd (No.1) at 222–223). However, the Court should also consider the prospects of the appeal and where the balance of convenience lies between the parties (Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No.1) (1986) 161 CLR 681 at 685).
Those common law principles apply equally to judgments delivered in this jurisdiction, including judgments pertaining to parenting orders (see JRN & IEG (1998) 72 ALJR 1329; Sheldon & Weir (Stay Application) [2011] FamCAFC 5 at [14]–[15]; Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106 at [18]; Trahn & Long (No.2) [2008] FamCAFC 194 at [38]). With particular relevance to the stay of parenting orders, the welfare of the child is now considered a significant, but not the paramount, consideration. Residential changes should desirably be limited as far as reasonably possible. The Court should also consider whether the child’s present circumstances are satisfactory, the bona fides of the appeal, the apparent strength of the appeal, and the likely delay before the appeal is heard and determined.
It should also be borne in mind that, if the appealed judgment is discretionary in nature (as it is here), the appellate court must strongly presume it to be correct (Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at 627).
In this instance, the appealed orders were immediately implemented upon their pronouncement a month ago. The child was immediately removed into the mother’s residential care, where he has remained ever since, so the denial of the stay will not render the appeal nugatory. Despite the father’s expressed apprehension about how the child might be coping without him, there is no direct and independent evidence about the child’s emotional progress. He may be quite content with the current residential arrangement. The mother’s evidence implies he is. The father’s subjective fear of the child’s discontent is not probative. It is unnecessary to settle the parties’ disputed impressions with a finding. No evidence supports an inference that the child’s best interests demand his immediate return to the father’s primary care.
In any event, the stay of the appealed orders would not restore the child’s residence with the father. It would only revive anterior interim orders, which required the child to live with the parties for equal time, but which orders were egregiously flouted by the father for many months. That is presumably the reason why he now seeks fresh interim parenting orders in addition to the stay, to ensure the child lives exclusively with him and only interacts with the mother as the child wishes. However, original jurisdiction under Pt VII of the Act has been exhausted. Jurisdiction no longer exists to make entirely fresh interim parenting orders. For the same reason, the mandatory injunction sought by the mother cannot be made. The sole issue for consideration is whether or not the appealed orders should be stayed pending the outcome of the appeal. Orders can be stayed conditionally, but such conditions cannot extend to substantive supplementary orders which are fundamentally and absurdly inconsistent with findings made at trial.
Any stay of the appealed orders would result in another disturbance to the child’s residence, which binding authority suggests should be avoided. If the appeal ultimately succeeds then, upon either the re-exercise of discretion or the remitter of the dispute for re-hearing, an order may be made for the child to be returned to the father’s residential care.
It may be accepted that the father’s appeal is bona fides, but it does not appear to enjoy strong prospects of success. It is claimed that the allowance of the mother to call some supplementary oral evidence in the trial deprived the father of procedural fairness and amounted to error (Grounds 1, 2 and 3). It is also claimed the single expert’s opinion evidence was erroneously analysed (Ground 4) and some unidentified findings made under s 60CC of the Act were wrong (Ground 5). In due course, the Full Court will consider the merit of the grounds, but they ostensibly appear to lack merit – at least on the basis they were elaborated by the father in this hearing.
In all likelihood, the appeal will be promptly heard within the next few months, so the determination of the appeal will not be unduly delayed. The father has filed an interlocutory application in the appeal seeking an expedited hearing, which will be heard in due course.
None of the arguments advanced by the father, either individually or collectively, are sufficient to persuade of the need for the appealed orders to be stayed. The application is refused.
Costs
The father’s application for costs of the interlocutory application cannot be maintained in the face of its dismissal, with which proposition he agreed.
The mother made an application against the father for an order compelling him to pay her costs of successfully defending the application, assessed in the sum of $2,500, because the application was wholly unsuccessful and should not have been brought. She thereby sought to invoke ss 117(2) and 117(2A)(e) of the Act to override the usual outcome of parties bearing their own costs of proceedings under the Act (s 117(1)).
The father proposed that the question of costs be reserved until after the appeal is determined, but the submission is rejected. Even if the appeal is eventually allowed, it will not gainsay the decision to refuse the stay application because, first, an evaluation of the apparent merit of the appeal is only one factor that influences the grant or refusal of a stay application, and secondly, the ostensible merit of the proposed grounds of appeal must be distinguished from the actual merit of the grounds of appeal eventually argued. The costs dispute should be decided now.
The father did not oppose the costs order outright, but contended the mother’s assessment of her costs was unreasonably high and should be more properly assessed at around $1,100. The submission is rejected. In reliance upon r 12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), the mother’s party/party costs are fixed at $2,500 and the father is ordered to pay them.
The ICL also sought her costs of $1,650 against the father. Again, he did not oppose the costs order outright, either by invoking s 117(4)(b) of the Act or on any other basis, but rather contended the assessment of costs was unreasonably high and should be more properly assessed at an amount commensurate with only one hour of work. The submission is rejected. The ICL’s party/party costs are fixed at $1,650 in reliance upon r 12.17(1)(a) of the Rules and the father is ordered to pay them.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 23 June 2023
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