Channing & Channing (No 3)

[2024] FedCFamC2F 414

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Channing & Channing (No 3) [2024] FedCFamC2F 414

File number(s):

PAC 5460 of 2021

Judgment of:

JUDGE OBRADOVIC

Date of judgment:

21 March 2024

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – Oral application for stay pending appeal.

Legislation:

Federal Circuit and Family Court of Australia Act2021 (Cth) s 38(1)

Cases cited:

Aldridge & Keaton [2009] FamCAFC 106

Withers & Russell [2022] FedCFamC1A 108

Division:

Division 2 Family Law

Number of paragraphs:

8

Date of hearing:

21 March 2024

Place:

Parramatta

Counsel for the Applicant:

Mr Gardiner

Solicitor for the Applicant:

AJL Legal

Counsel for the Respondent:

Mr Batey

Solicitor for the Respondent:

Hikma Legal

Counsel for the Independent Children's Lawyer:

Dr McConaghy

Solicitor for the Independent Children's Lawyer:

Legal Aid NSW Bankstown Family Law

ORDERS

PAC 5460 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR CHANNING

Applicant

AND:

MS CHANNING

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE OBRADOVIC
DATE OF ORDER:	21 MARCH 2024

THE COURT ORDERS THAT:

1.The oral application for a stay 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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

JUDGE OBRADOVIC:

1. This morning I heard an application for a stay of these proceedings pending the determination of an application for leave to appeal and appeal of the recusal application decision which was delivered on 7 March 2024.  For reasons which were explained earlier today, I did not stay the substantive proceedings. 

2. Over the luncheon adjournment, the father has drafted and sent to the Appeals Registry documents which are now within Exhibit 10, being an Application in an Appeal and an affidavit. The Application in an Appeal seeks orders as follows: “that the first instance proceedings [that is, these proceedings before me] …be stayed pending the disposition of this appeal.”

3. An affidavit of the father has been sworn and also sent to the Appeals Registry but not yet filed. That is a short affidavit that simply lists, in chronological order, what has occurred in these proceedings. Counsel for the father identified section 38(1) of the Federal Circuit and Family Court of Australia Act2021 (Cth) as the source of power for the Full Court to grant a stay of these proceedings.

4. In Withers & Russell[1], which was a decision of Austin J sitting in the appellate jurisdiction of Division 1, in circumstances similar to what has occurred here (that is, there was an appeal, a stay application made to the primary judge in respect of the appeal, the stay application was dismissed and then a further application was made to the Full Court to stay the substantive proceedings), His Honour said, starting at paragraph 14, as follows:

   14.The Court has always had power within its appellate jurisdiction to stay appealed orders so as to preserve the subject matter of the appeal in which the stay application is actually made (Cantrell & North (2019) FLC 93-921 at [21]–[25]), the existence of which power is now the subject of statutory entrenchment (s 38 of the FCFCA Act), but that is not the situation at hand.

   15.The initial stay application was made to the primary judge, which r 13.12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) stipulates to be the preferred course. The primary judge refused to stay the substantive parenting orders pending the determination of the principal appeal, so to now make an order staying the substantive orders would impermissibly countermand the primary judge’s decision to dismiss the stay application, the separate appeal from which must now be determined by the Full Court.

   16.Single judges exercising appellate jurisdiction have confined power to hear and determine stay applications in respect of “any proceedings under the judgment appealed from”, but no single judge exercising appellate jurisdiction under the FCFCA Act has express or implied power to stay the substantive orders in the principal appeal and thereby pre-empt the judgment of the Full Court in the stay appeal.

   17.If and only if the stay appeal succeeds, the Full Court may set aside the primary judge’s order dismissing the father’s stay application and then, in the re-exercise of discretion, make an order staying the substantive orders pending determination of the principal appeal.

   [1] [2022] FedCFamC1A 108.

5. In these proceedings, the father has not sought to appeal the order dismissing the stay application.  He has simply sought to file an application in an appeal seeking a stay of these proceedings. 

6. Counsel for the father, in making submissions as to why I should now grant the stay of the substantive proceedings, did not address any of the relevant matters in terms of Aldridge & Keaton[2] and like authorities.  The submissions focused on the injustice that would be suffered if the stay was not granted.

   [2] [2009] FamCAFC 106.

7. I am not satisfied that the Court’s discretion should be exercised such as to stay the substantive proceedings based on the sending of an Application in an Appeal to stay these proceedings, together with the affidavit of Mr Channing, to the Appeals Registry during the luncheon adjournment but which have not yet been filed. 

8. I dismiss the oral application for a stay.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Obradovic.

Associate:

Dated:       3 April 2024