Bruce & Bruce (No 2)
[2023] FedCFamC1F 1012
•24 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bruce & Bruce (No 2) [2023] FedCFamC1F 1012
File number: NCC 4120 of 2020 Judgment of: AUSTIN J Date of judgment: 24 November 2023 Catchwords: FAMILY LAW – PARENTING – Where the mother seeks a stay of final parenting orders pending determination of an appeal – Where the appealed orders require the children to live with the father and eliminate the mother from the children’s lives for two months before the graduated restoration of their relationship – Where the mother’s appeal would not be rendered nugatory by dismissal of her stay application – Where a stay of the appealed orders would cause another disturbance to the children’s residence – Application dismissed. Legislation: Family Law Act 1975 (Cth) Pt VII, s 68B and s 114
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35 and s 38
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 5.3, rr 5.11, 11.10, 13.12
Cases cited: Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106
Australian Coal and Shale Employees’ Federation v The Commonwealth (1956) 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: 45 Date of hearing: 24 November 2023 Place: Sydney (via Microsoft Teams) The Applicant: Litigant in person Solicitor for the Respondent: Dawson & Gardiner Solicitors Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
NCC 4120 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BRUCE
Applicant
AND: MR BRUCE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
24 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed on 22 November 2023 is dismissed.
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 the pseudonym Bruce & Bruce has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
On 3 November 2023, I made orders to finally determine the parenting cause of action contested between the parties in respect of their two children under Pt VII of the Family Law Act 1975 (Cth) (“the Act”). In summary, the orders required the children to live with the father instead of the mother and restored the children’s interaction with the mother incrementally, following the expiration of a short embargo period. The children were delivered into the father’s care following the pronouncement of judgment and they have lived with him since. Although there is no evidence of it, the children have presumably not since seen the mother because the embargo period has not yet expired.
The mother appealed from the orders on the same day they were pronounced. The Full Court will hear that appeal in due course – probably early in the new year.
Several weeks afterwards, on 22 November 2023, the mother filed an Application in a Proceeding seeking various forms of relief. The application was listed for hearing before me today (24 November 2023) and is dismissed for the following reasons.
The application and evidence
The relief sought by the mother was in these terms:
1.That this application be heard on an urgent basis for the welfare, safety & protection of [the children].
2.That this Application be heard on an Urgent Ex Parte basis in the absence of [the father] & any of his Agents, Associates or Representatives for Welfare, Safety & Protection of [the children], that are currently in the Respondent Father’s sole care for the first time.
3.That this application be heard by a Justice other than His Honour Justice Austin due to Evidence of a Conflict of Interest.
4.That the Final Parenting Orders made by His Honour Justice Austin on Friday 03 November 2023 be Stayed Instantly.
5.That Fresh & Excluded Evidence relating to Child Sexual Abuse, Child Physical Abuse & Domestic & Family provided by the eldest child in this matter, [the eldest child] be urgently considered.
6.That an Injunction be made against the Respondent Father, [the father’s wife], Agents & Associates for Welfare & Safety Orders Protecting [the mother] and [the children].
7.That Costs be Reserved for the Consideration by the Appellate Court.
(As per the original)
The application for such relief was supported by the mother’s affidavit, also filed on 22 November 2023.
The mother filed written submissions about 30 minutes prior to the hearing, which she declined to supplement orally when invited, but she did make some short submissions in reply to those of the father and the Independent Children’s Lawyer (“the ICL”).
Proposed Order 1
The applicant seeks that her application is heard on an urgent basis. It is. This hearing was scheduled within 48 hours of the application being filed.
Proposed Order 2
The applicant’s request for the application to be heard on an ex parte basis is refused. The father and the ICL are both entitled to be heard.
The reason advanced by the mother for an ex parte hearing was only this:
34.Given the serious allegations and documented evidence, an urgent ex parte hearing is warranted. Rule 11.10 of the Federal Circuit and Family Court Rules 2021 allows for applications for interim orders to be heard without notice in certain circumstances. Notice should not be given to [the respondent father], due to the potential risk of harm to [the children].
(As per the original)
The obvious implication is that, if the father is forewarned of the application, he might abuse the children in some way, which is illogical, if not absurd. The important corollary though is that, if the father is not forewarned, the children should be safe, of which implied concession the mother seemed ignorant.
The grant of a remedy to a litigant without any notice being given to all other parties to the proceeding is quite exceptional. The Court ordinarily only entertains ex parte applications in instances of acute urgency and, even then, only when necessary and the remedy is proportionate to the harm which is sought to be avoided. There is no demonstrated need for urgency here, which the mother must implicitly accept because she waited several weeks after filing the appeal to bring the application.
The applicant’s reliance upon r 11.10 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) is mistaken. That rule applies exclusively to applications for orders to enforce the procurement of financial information.
Instead, r 5.11 sets out the requirements for an application for interlocutory orders without notice to the respondents. Relevantly, the applicant must satisfy the Court an urgent ex parte hearing is warranted and must provide certain specified information within an accompanying affidavit, with which rule the mother has not complied.
The applicant also indicated within the application form that she wanted it determined in her absence on the papers, pursuant to Pt 5.3 of the Rules, but that request is also refused.
Proposed Order 3
The applicant wants the application determined by another judge because of “evidence of a conflict of interest”, though she did not specify what interests were in conflict.
By advertence to the mother’s affidavit, the “evidence” of my asserted “conflict of interest” is no more than her suspicion or apprehension that I may have unlawfully colluded with the legal representatives of both the father and the ICL, after the trial ended but before judgment was pronounced, to agree upon an outcome which was adverse to her and the children. Such suspicion is premised upon two things: first, the attendance of the father, his lawyer, and the ICL upon the court premises on an occasion after the trial was complete but before judgment was delivered; and secondly, the night before judgment was delivered, while the children were still within the mother’s care, the elder child posted a social media message informing her friends that she would be moving to live with the father.
The mother relevantly said this in her affidavit:
21.On 2 November 2023 at 10:51PM, the Thursday night before the Final Orders were delivered by His Honour, my daughter [child’s name] while being in the care of my parents at their house, wrote a message to her three best friends from school in a group chat on Kids Facebook Messenger.
...
30.Additionally, there are witness accounts and video evidence indicating that [the father] and involved legal parties were present at [the] Registry […] after trial conclusion but before judgment was issued. This raises potential bias concerns in the judgment due to exclusive interaction between His Honour Justice Austin and one side of the dispute, in violation of Charisteas v Charisteas (2006) HCA 62 precedent.
31.Given these concerns, it is inappropriate for Justice Austin to preside over this application due to potential conflict of interest. As per Charisteas (2006) 226 CLR 234 decision, a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind (at 249 [40]). I respectfully request that another judge hear this application.
…
47.The fact that [the eldest child] confirmed in written statements that she already knew what the outcome of the judgement and both her and [the youngest child] had been informed of what the final parenting orders were prior to their official announcement supports the evidence that His Honour Justice Austin had prejudicially determined the matter in concert with the Father, lawyer, expert witness and the ICL.
…
49.Evidence has been provided by a firsthand witness who was present at the scene, along with footage, which corroborates that [the father], his solicitor, [name], the Independent Children’s Lawyer for these proceedings, [name], and a substitute Female Independent Children’s Lawyer who initially participated in the trial commencing on 16th October 2023, were all seen in a private area of the […] Registry on [a later date].
50.This was […] after the conclusion of the trial and prior to judgment being delivered. The nature of this gathering is questionable as I was neither included nor invited to partake in this alleged confidential meeting.
…
52.There are further allegations suggesting that His Honour Justice Austin may have engaged in a private discussion with these legal parties. This could potentially indicate bias in Justice Austin’s judgment due to exclusive interaction with only one party in this legal dispute. If proven true, this behaviour contradicts the High Court precedent set in Charisteas v Charisteas (2006) HCA 62; (2006) 227 CLR 374; (2006) 226 ALR 457; (2006) 81 ALJR 83 which strictly forbids ex parte communications between judges and parties or their representatives.
53.The witness contacted me around 11.30am requesting me to urgently come to the Courthouse as all four parties involved in the trial were present without any documented court hearings. She verified that they were not present in public areas of the Courthouse or involved in any separate matters scheduled for that day.
54.The inference can thus be made that these individuals were meeting regarding the judgment on this matter, possibly even with the Judge – otherwise they would have chosen a more discreet location for their meeting.
55.I was present to observe the departure of the two ICL’s from the Courthouse and also inspected the public areas of the Courthouse to confirm that they were not there for any other reason.
(As per the original)
Without pausing to remark upon either the irrationality or offensive nature of such specious allegations of my abrogation of judicial duty, two things may be confidently said about the mother’s propositions.
First, there is no evidence of any contact of any sort between myself and any litigant or lawyer involved in these proceedings in the period between the completion of the trial and the pronouncement of judgment. There is no evidence of it because it never happened.
Secondly, unless the mother experienced some change in attitude after the trial completed, she would not have allowed the children to have any contact with the father in the period between the completion of the trial and the pronouncement of judgment, as the children have had no contact with the father since January 2023. Whatever the elder child might have said in a social media post the evening before the judgment was delivered while she was visiting the maternal grandmother could not have been information obtained by her through communication with the father. Any number of reasons, aside from the elder child’s complicity in the imagined collusion between myself, the father, the ICL, the lawyers, and the single expert, could be advanced to explain why the elder child posted her social media message.
My alleged bias and corruption are limbs of the mother’s appeal but, for present purposes, an application to stay appealed orders pending the disposition of the appeal should ordinarily be heard by the judge who made the orders (r 13.12(3) of the Rules; s 38(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”)). The mother advanced no good reason why I should not hear and determine the stay application. She said she was content for me to hear the application if I felt it was appropriate to do so, as I do.
Proposed Order 4
The mother seeks that the orders made on 3 November 2023 be stayed.
While she does not say so, presumably the stay is intended to apply only until the appeal is determined, which the mother is confident she will win, because she deposed this:
45.Due to this argument, and the requirements of s273B.4 Criminal Code Act 1995 (Cth), the likelihood of success in this Appeal is very high, if not, guaranteed.
(As per the original)
It is first necessary to set out the legal principles which govern the determination of stay applications.
The discretion to stay the operation of appealed orders should only be exercised where circumstances exist to justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation pending the determination of any appeal. Such circumstances justifying a stay will exist where it is necessary to prevent the appeal from being rendered nugatory or for whatever other reason there is a real risk it will not be possible for a successful appellant to be restored substantially to his or her former position if the judgment against him or her is executed (Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220 at 222–223). The Court should also consider the prospects of the appeal and where the balance of convenience lies (see 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 (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 children 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 children’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.
I am entitled to assume the judgment under appeal is correct. Indeed, the Full Court must subsequently approach the appeal strongly presuming the decision is correct (Australian Coal and Shale Employees’ Federation v The Commonwealth (1956) 94 CLR 621 at 627).
Here, the children are already in the father’s residential care. Granting the stay application would revive former interim orders, requiring the children to return and live with the mother. If the appeal fails, the children must then move back to live with the father. Such disruption should be avoided, particularly when the mother’s grounds of appeal appear to lack the strong prospects of success she believes. The mother seems to have overlooked the presumptive correctness of the judgment.
The children’s residence was reversed because findings were made that the mother caused them emotional harm and they were at risk of sustaining more of the same harm if they remained living with her. By contrast the father was found not to pose any material risk of harm to the children. The as-yet undisturbed findings require that the children remain living with the father, as that arrangement promotes their welfare. Taking steps to facilitate the children’s return to the mother while the appeal is pending would bizarrely contradict the findings made at trial and would compromise their best interests.
There is no evidence the children are anything other than content living with the father. There is no reason to suspect the children’s present circumstances are unsatisfactory. The appeal will likely be promptly heard and so, even if the mother is correct about the future success of the appeal, she and the children will only have to endure the appealed orders for the next couple of months.
I am prepared to accept that the appeal is bona fides, but the mother’s honest belief in the merit of the appeal does not outweigh the preceding considerations.
Proposed Order 5
The meaning of this proposed order is elusive.
To the extent that the mother wishes the contents of her affidavit taken into account in support of this application, it is. Though it should be observed that:
(a)the only “fresh” or “new” evidence is the copy of the social media message posted by the elder child the night before judgment was pronounced, while she was still living with the mother;
(b)all other documents to which the mother refers, but which were not adduced in evidence at the trial, were available at the time of, and could have been tendered during, the trial; and
(c)some documents the mother did try to tender at the trial were rejected because she did not establish their threshold admissibility by demonstrating their relevance or probative value.
To the extent that the mother instead wishes that such “fresh and excluded” evidence be considered in the appeal, that is a matter for the Full Court in the exercise of its discretion under s 35(b) of the FCFCA Act. She may encounter trouble persuading the Full Court of the need for further evidence, given her concession in her affidavit that:
44.Justice Austin had all of the evidence required to make a decision that myself and the Children were at risk of physical and sexual harm by the Father, and this met the criteria required for protection under s 60B, s60CG and s60CA Family Law Act 1975 (Cth) and mandatory s60CC factors in line with s69ZN Principles for Child Related Proceedings, where s67 Federal Circuit and Family Court of Australia Act 2021 (Cth) required a mandatory application of all Family Law principles.
(As per the original) (Bold emphasis added)
Being armed with “all of the evidence required”, it was determined that only the mother posed a risk of harm to the children, against which they required protection.
Proposed Order 6
As drafted, the injunction which the mother now seeks makes no grammatical sense.
To the extent she intended to seek an injunction against all the named persons and entities for the personal protection of herself and the children, there are two comprehensive answers.
First, original jurisdiction under the Act in the parenting cause has been exhausted. The only current application capable of being entertained is the stay application.
Secondly, even if jurisdiction did exist, there is no evidence within the mother’s affidavit to justify an exercise of discretion to make an injunction under s 68B or s 114(3) of the Act. It should be noted the mother did not seek any such injunction, in identical or even similar terms, at the trial within the minute of orders she proposed (Exhibit M17).
Without making any specific application for substitute interim parenting orders, the mother said this in her affidavit:
33.The urgency of this matter cannot be understated. The recent and sudden antithesis change in their living situation places [the children], at a significantly heightened level of vulnerability. If possible, I urge the Registrar to make interim orders removing them from harm and setting aside current orders without a hearing. Assistance for the Australia Federal Police may be required to safely retrieve the children from [the father’s] custody.
(Empasis added)
The absence of original jurisdiction under the Act also precludes interlocutory orders of that sort being made.
Proposed Order 7
Any costs associated with this application should be determined by me now. There is no reason to reserve costs. The Full Court, when exercising appellate jurisdiction, cannot make costs orders in relation to stay applications made to the primary judge.
The mother’s application is wholly unsuccessful, so there is no basis upon which she could seek costs, though she has not even incurred any costs because she is self-represented.
Disposition
The application is dismissed.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 28 November 2023
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