Bruce & Bruce (No 2)

Case [2023] FedCFamC1F 1012

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 JUDGMENT

AUSTIN J:

  1. On 3…

Continue reading Bruce & Bruce (No 2)

Sign in free to access the full text

Details
AGLC
Bruce & Bruce (No 2) [2023] FedCFamC1F 1012
Case
[2023] FedCFamC1F 1012
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the mother, Ms Bruce, filed an application seeking a stay of final parenting orders made against her by Justice Austin. The orders mandated that the children live with the father for two months before a gradual resumption of their relationship with their mother. Ms Bruce filed the application on 22 November 2023, seeking relief on various grounds, including urgent consideration of new evidence regarding child abuse and protection from the father. The application was heard and dismissed by the court on 24 November 2023.

The primary legal issues the court had to address were whether the application for a stay should be granted and whether it should be heard on an ex parte basis. Ms Bruce argued that an urgent ex parte hearing was warranted due to the risk of harm to the children if the father was notified of the application. However, the court found that there was no demonstrated need for urgency, as the mother had waited several weeks after filing the appeal to bring the application. Additionally, the court ruled that the father and the Independent Children’s Lawyer were entitled to be heard, rejecting the request for an ex parte hearing.

The court’s reasoning was based on the lack of urgency in the application and the need for all parties to be heard. The mother’s argument for an urgent ex parte hearing was deemed illogical, as it implied that the children would be safe if the father was not notified, which was not substantiated. The court emphasised that ex parte applications are only considered in instances of acute urgency and necessity, which was not the case here. Consequently, the application for a stay of the final parenting orders was dismissed.

The final orders of the court were that the application filed on 22 November 2023 be dismissed. The court’s reasons for judgment may be subject to review for minor typographical or grammatical errors or to record a variation to the order. The decision underscores the importance of urgency and proportionality in granting interim relief in family law proceedings.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.