Bruce & Bruce (No 2)

Case [2023] FedCFamC1A 226

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Bruce & Bruce (No 2) [2023] FedCFamC1A 226

Appeal from: Bruce & Bruce (No 2) [2023] FedCFamC1F 1012
Appeal number: NAA 327 of 2023
File number: NCC 4120 of 2020
Judgment of: ALDRIDGE, REES & BRASCH JJ
Date of judgment: 15 December 2023
Catchwords: FAMILY LAW – APPEAL – Appeal from refusal of stay of parenting orders pending appeal – Where parenting orders removed the children from the mother and placed them in the father’s care – Where a number of the grounds of appeal have no merit – Found the primary judge did not err by considering the parenting decision correct until set aside on appeal – No error in failing to accept the mother’s contentions as to violence and sexual abuse – Further evidence admitted but deemed unlikely to have a significant outcome at the parenting appeal and not accorded significant weight – Lack of compelling evidence mandating the return of the children to the mother’s care – No error identified in the primary judge’s refusal of the stay – Appeal dismissed.
Legislation:

Criminal Code Act 1995 (Cth) s 273B.4

Family Law Act 1975 (Cth) s 60CC

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35

Cases cited:

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25

Bruce & Bruce [2023] FedCFamC1F 936

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220; [1986] HCA 13

House v The King (1936) 55 CLR 499; [1936] HCA 40

Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681; [1986] HCA 84

Newett & Newett [2023] HCASL 186

Newett & Newett (No 9) [2023] FedCFamC1A 23

Number of paragraphs: 70
Date of hearing: 12 December 2023
Place: Sydney
The Appellant: Litigant in person
The Respondent: Litigant in person
The Independent Children's Lawyer: Legal Aid NSW Newcastle Family Law (did not participate, submitting notice filed)

ORDERS

NAA 327 of 2023
NCC 4120 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MS BRUCE

Appellant
AND:

MR BRUCE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALDRIDGE, REES & BRASCH JJ

DATE OF ORDER:

15 DECEMBER 2023

THE COURT ORDERS THAT:

1.The group chat message dated November 2023 at Annexure “[MB]-1” of the mother’s affidavit filed 22 November 2023 is accepted as further evidence.

2.The applications to admit further evidence are otherwise dismissed.

3.The appeal is dismissed.

4.Any party seeking an order as to costs is to file and serve, within 28 days, written submissions not exceeding five pages setting out the basis for such costs, along with relevant invoices. Any response to those submissions is to be filed and served within 28 days of the date of service and is not to exceed five…

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Details
AGLC
Bruce & Bruce (No 2) [2023] FedCFamC1A 226
Case
[2023] FedCFamC1A 226
Decision Date

CaseChat Overview and Summary

The appeal in Bruce & Bruce (No 2) involved Ms Bruce appealing against the refusal of a stay of parenting orders that had been made by the Federal Circuit and Family Court of Australia. These orders had removed the children from the mother and placed them in the father's care. Ms Bruce argued that the primary judge had erred in not granting a stay of the parenting orders pending the outcome of her appeal, asserting that there was new evidence that would likely result in the orders being set aside. The appeal court needed to determine if the primary judge had erred in his decision regarding the stay of the parenting orders.

The court found that several of the grounds of appeal did not have merit. The primary judge had not erred in considering the parenting decision to be correct until set aside on appeal, and had not erred in not placing significant weight on the prospects of success of the appeal. The court also found that the primary judge had not erred in failing to accept the mother's contentions regarding violence and sexual abuse, as the evidence provided was not compelling. The court accepted a group chat message as further evidence but deemed it unlikely to have a significant outcome at the parenting appeal and did not accord it significant weight. The court found that there was a lack of compelling evidence that mandated the return of the children to the mother’s care. Therefore, the primary judge had not erred in his refusal to grant a stay of the parenting orders.

The appeal court dismissed the appeal, finding no error in the primary judge’s refusal of the stay of the parenting orders. The court also accepted the group chat message as further evidence but dismissed the applications to admit other further evidence. The court ordered that any party seeking an order as to costs was to file and serve, within 28 days, written submissions not exceeding five pages setting out the basis for such costs, along with relevant invoices. Any response to those submissions was to be filed and served within 28 days of the date of service and was not to exceed five pages.

Orders

Orders of the court

NAA 327 of 2023

NCC 4120 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS BRUCE

Appellant

AND:

MR BRUCE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALDRIDGE, REES & BRASCH JJ

DATE OF ORDER:

15 DECEMBER 2023

THE COURT ORDERS THAT:

1. The group chat message dated November 2023 at Annexure “[MB]-1” of the mother’s affidavit filed 22 November 2023 is accepted as further evidence.

2. The applications to admit further evidence are otherwise dismissed.

3. The appeal is dismissed.

4. Any party seeking an order as to costs is to file and serve, within 28 days, written submissions not exceeding five pages setting out the basis for such costs, along with relevant invoices. Any response to those submissions is to be filed and served within 28 days of the date of service and is not to exceed five pages.

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).

Background

Background to the litigation

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Evidence

Evidence Before The Court

The primary judge did not err by not placing significant weight on the prospects of success of the appeal and by relying on the presumption that the parenting decision was correct until set aside on appeal.Further evidence The mother relied strongly on the proposed further evidence. The only new material is a record of a group chat involving X. The contention is that it establishes that X has been sexually abused by the father so that it is highly likely, if not certain, that the Court hearing the parenting appeal will set the orders aside and return the care of the children to the mother, thereby justifying an immediate stay. The evidence is that the mother assisted her to create a ‘chat group’ in order to be able to chat to her friends. It is apparent from the face of the reprint of the chat that the parents of most of the other children, if not all, are also members of the ‘chat group’ and they can read all of the messages. In early November 2023, at 10.51 pm, the night before the final reasons were to be delivered, X sent this message to her friends:Hey guys, What I’m about to talk about is serious.. I’ll just get to the point. My dad has been given custody of me and my brother… This will be my last time messaging you guys but I have some good news! Part of my dad getting me and brother is that we are finishing the year at [School H] but I don’t know what happens from then onward…From tomorrow I will be living with my dad who is severely strict and is abusive.. I am not allowed any devices there so this is my last message. I love all of you guys [emoji] All of you are amazing friends [heart emojis] I’m not sure if I’m going to be safe but I want you to know that I won’t stop fighting because I know how it feels to hit rock bottom but some times no one believes me and says that I make it up… I know this is really random but I want you to know EVERYTHING! Because it’s not fair if I don’t tell you and leave you confused. A few years ago I was severely suicidal and left my teacher a death note.. At that time I was cutting myself and tried to kill myself several times… There have been the odd occasion where I do get those feelings again but I never want to go there again… I’m year 4 I used to hide my bruises with concealer so no one would know and you know what?! The entirety of my dad’s family knew what he was doing and DID NOTHING TO SAVE AN INNOCENT CHILDS LIFE! I have been sexually abused multiple times by him, emotionally abused, physically abused and mentally abused… I have depression, PTSD, anxiety, trust issues, an ED and suicidal thoughts.. All of these because of my dad.. I have been struggling really bad with panic attacks latel because of everything as well. I am so sorry for bombarding u guys with all this but u deserve to know. Out of all the friends I’ve had at my 3 schools, you guys have been the best [emoji] I gtg now but I hope to see you on Monday and btw plz don’t tell anyone about this, it is very private and I’m trusting you guys with so much! Love you bye!…I’m also not coming tmrw because I’m going to court because the decision is being made. …I already know who it is tho and I’m so sorry. …It’s my dad…(Emphasis added)(Annexure “MB-1” to the mother’s affidavit filed 22 November 2023, p.15–21)

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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