Halkias & Pace (No 2)

[2021] FCCA 1128

FEDERAL CIRCUIT COURT OF AUSTRALIA

Halkias & Pace (No 2) [2021] FCCA 1128

File number(s):

MLC 2969 of 2017

Judgment of:

JUDGE BECKHOUSE

Date of judgment:

19 May 2021

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of orders – where stay sought in relation to orders releasing the parties from the Harman undertaking in respect of an affidavit sworn by the Applicant – where a Notice of Appeal has been filed and expedition granted -where the parties have defamation proceedings before the County Court of Victoria - stay granted - costs reserved.  

Legislation:

 Family Law Act 1975 (Cth) s 121

Family Law Rules 2004 (Cth) rr 22.11(1), 22.11(2)

Federal Circuit Court Rules 2001 (Cth) r 29.04

Cases cited:

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

EJK v TSLNo 2 [2006] FamCA 806, quoting Clemett & Clemett (1981) FLC 91-013

Medlow & Medlow [2016] FamCAFC 34

Number of paragraphs:

35

Date of hearing:

19 May 2021

Place:

Wollongong

Counsel for the Applicant:

Ms Kaiti

Counsel for the Respondent:

Ms Collaris

Solicitor for the Applicant:

Galea and Faustin Solicitors

ORDERS

MLC 2969 of 2017

BETWEEN:

MR HALKIAS

Applicant

AND:

MS PACE

Respondent

ORDER MADE BY:	JUDGE BECKHOUSE
DATE OF ORDER:	19 MAY 2021

THE COURT ORDERS THAT:

1.The Orders made on 14 May 2021 be stayed until the determination of the appeal against those Orders.

2.Costs are reserved.

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 under the pseudonym Halkias & Pace (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

1. These are settled reasons for judgment that were delivered ex tempore on 19 May 2021. Grammatical and literal errors have been corrected from the transcript for comprehension and legal references included.

2. This is a judgment in the Application in a Case in relation to Ms Pace, who I will refer to as the Applicant, and Mr Halkias, who I will refer to as the Respondent. 

3. The Applicant has filed an Application in a Case for the staying of the orders that were made by me on 14 May 2021: namely the Applicant seeks an order that the Orders made at 9.30 am on 14 May 2021 be stayed pursuant to Rule 29.04 of the Federal Circuit Court Rules.

4. The parties commenced a relationship in 2012 and separated in May 2015. 

5. The parties’ child X was born in 2014 and is currently seven years old. 

6. The proceedings commenced in the Melbourne Registry of the Federal Circuit Court on 28 March 2017 by way of the Respondent filing an Initiating Application seeking parenting orders.

7. In June 2017, final orders were made by Judge Stewart. 

8. In November 2018, the Respondent filed an interim application with respect to an alleged section 121 of the Family Law Act breach by the Applicant.

9. On 31 January 2019 the Federal Circuit Court ordered at Order 1 that:

   The Respondent [Mother] be restrained from disseminating information in relation to these proceedings to the public or part of the public including but not limited to the family members of the Applicant’s [Father] fiancé pursuant to section 121 of the Family Law Act 1975.

10. The Federal Circuit Court matter settled by consent on 31 May 2019, with previous orders restraining the Applicant from disseminating information in relation to the Family Law orders being discharged and dismissed. 

11. In January 2019, the Respondent commenced defamation proceedings in the Supreme Court of Victoria, which was subsequently transferred to the County Court of Victoria.

12. On 14 October 2019, the Respondent initiated the second round of family law proceedings which were ultimately transferred to the Sydney Registry. 

13. On 6 April 2021, the Respondent filed an interim application seeking that the Applicant be restrained from disseminating information about him and that suppression and/or non-publication orders being made in relation to the family law proceedings.  That application is listed before Judge Boyle on 9 June 2021.

14. On 11 May 2021, the Respondent filed another interim application seeking to be released from the implied Harman undertaking in respect of the Applicant’s affidavit that was filed on 27 April 2017.  He sought that the application be listed urgently because he required the release, for the purpose of the County Court of Victoria defamation proceedings which had been listed for final hearing, commencing Monday, 17 May 2021.

15. The matter was listed urgently before Judge Boyle on Monday, 13 May 2021 at 9.30 am.  It was transferred to me at 4.30 pm on 13 May 2021, and I heard the matter.  The following morning I made orders that the parties are released from the implied Harman undertaking in respect of the Affidavit of Ms Pace, sworn 27 April 2017, and I gave them leave to use the Affidavit in the defamation proceedings currently before the County Court of Victoria.

16. On 14 May 2021, the Applicant advised this Court that she sought to appeal the decision.  She has now filed a Notice of Appeal and sought a stay of the orders made by me on 14 May 2021.

17. Of significance, the Applicant also filed an application seeking expedition of the hearing of her appeal, and I understand that her application for expedition was dealt with this morning, and that the Full Court will convene to hear the appeal on Friday, 21 May at 2.30 pm. 

18. In the meantime, I am advised today that the proceedings have commenced in the County Court of Victoria.  The parties have been participating in a judicial mediation process yesterday and today. I am advised by Ms Kaiti of counsel that the Affidavit of Ms Pace was attempted to be put into evidence today, but I have no further information before me as to whether it was accepted.

19. It is necessary to put onto the record the grounds of appeal as enumerated in the Notice of Appeal that was filed today.  I won’t read those right now, but I will read them for the purposes of putting them onto the formal record, and those orders are ordered number 1 through to number 11 as follows:

    Grounds of appeal

    1.That the Judge erred by denying the Appellant procedural fairness.

    2.That the Judge erred in failing to consider the necessity for the release of the documents for the civil procedure.

    3.That the Judge erred by giving undue consideration to an affidavit that has not yet been read and tested under cross-examination prior to allowing its release in defamation proceedings.

    4.The Judge erred by determining that the whole of the contents of the affidavit (other than annexures) be disclosed without any redaction causing relevant individuals to now be identified.

    5.That the [J]udge erred in failing to consider public policy properly.

    6.That the Judge failed to properly consider and apply ‘special circumstances’ prior to making a decision in granting leave.

    7.[T]he Judge failed to apply her discretion to properly determining whether there existed a legitimate forensic purpose and how it will materially assist the Respondent in defamation proceedings that he commenced in the County Court.

    8.The Judge erred by accepting an incorrect historical account of proceedings in the Federal Circuit Court as outlined by the Respondent’s legal representative.

    9.That the Judge erred by failing to determine whether the best interests of the child were paramount consideration in the exercise of discretion in whether to grant leave to release the affidavit of Ms Pace.

    10.The Judge erred at law in reaching her decision by failing to take into account and/or to give due weight to relevant legal principles.

    11.The Judge erred in taking into account and/or giving excessive weight to matters submitted on behalf of the respondent.

20. The Applicant, Ms Pace, relies on an Application in a Case and Affidavit filed on 14 May 2021, written submissions, the Affidavit of Mr F filed on 13 May 2021, a Notice of Appeal filed on 18 May 2021, and an Application in an Appeal for expedition, and Affidavit in support that were filed today, being 19 May 2021. 

21. The Respondent seeks to rely on a Response to an Application in a Case filed 19 May 2021, the Affidavit of Mr G filed 11 May 2021, and written submissions.

22. I will turn to a brief appraisal of the law. 

23. The mere filing of an appeal is not sufficient to ground a stay. Under Rule 22.11 of the Family Law Rules, “[t]he filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from”[1].  However, if a party has appealed against an order, “any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal [or application] relates.”[2] There is also a mirror provision in the Federal Circuit Court Rules[3]. 

    [1] Rule 22.11(1) of the Family Law Rules 2004 (Cth)

    [2] Rule 22.11(2) of the Family Law Rules 2004 (Cth)

    [3] Rule 29.12 Federal Circuit Court Rules (2001) (Cth)

24. The test for leave to appeal interlocutory orders is set out at paragraph 57 of the case of Medlow & Medlow [2016] FamCAFC 34, and I read from that paragraph. The test is:

    [W]hether, in all the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court and whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

25. The lead case in this jurisdiction is Aldridge & Keaton(Stay Appeal) [2009] FamCAFC 106 from 2009, which I will refer to as Aldridge.  The Full Court in that case outlined many of the principles to be applied in determining an application for a stay of orders.  I won’t proceed to list those principles, but I will address those of them that are relevant to my considerations today.

26. The Applicant’s submissions can be summarised as follows.  The main argument is that her appeal would be rendered nugatory should the stay not be granted.  She is concerned that a release of the Affidavit will mean it is allowed to enter the public domain and may be published by the media.

27. In relation to the appeal points, she argues that an incorrect determination was applied to the public policy consideration, namely that the ruling will have the effect of deterring victims of family violence from raising family violence allegations if my decision was to stand. 

28. She also argues that she was denied procedural fairness as she had insufficient time to prepare.

29. Counsel for the Respondent says her client is entitled to the benefit of the order.  The Respondent says it is in both parties’ interest that the Affidavit be released as they both seek to rely on its contents in the County Court proceedings. 

30. Counsel for the Respondent describes the Applicant’s prospects of success as hopeless. She says that the Applicant bears the onus on demonstrating that there are prospects of success in the appeal, and that the grounds relate to matters within the exercise of judicial discretion. 

31. The Respondent argues that the interim application filed on 11 May 2021 seeking to be released from the implied Harman undertaking was served in accordance with the rules, and that procedural fairness was afforded to the Applicant.

32. Most stay applications would generally consider and make a preliminary assessment of the strengths of the proposed appeal, whether the appellant has an arguable case.  I’m not going to do this because the Full Court will convene on Friday to consider the appeal. 

33. There are three main principles arising from the Aldridge case which have led me to stay the orders of 14 May 2021.

    (1)Firstly, the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of a stay for a short period of time. 

    ·The Full Court will convene to hear the appeal on Friday, 21 May at 2.30 pm – essentially, in less than 70 hours. 

    ·Counsel for the Respondent argued that her client will suffer an incurable prejudice if he cannot rely on the Affidavit – furthermore, that a stay might lead to an adjournment application with a significant cost resultant for the parties, as senior counsel has been briefed in the matter. While a costs order could be made, she is concerned that a costs order may not be able to be satisfied by the Applicant. 

    ·In EJK v TSLNo 2 [2006] FamCA 806, the Full Court, when considering a stay order, says at [16]:

    ‘If the appeal appears to be based on substantial grounds and is not a mere delaying tactic, [and] it can be dealt with within a reasonable time, [and] it will be appropriate to grant a stay of proceedings for at least a short period.’

    ·I note that the parties have been in a judicial mediation process for two days.  That would indicate that they have been in a position to stall the County Court proceedings. I am also satisfied that the presiding magistrate in those proceedings is aware of these proceedings, the issues being contested, and the interrelationship between both sets of proceedings.

    ·I therefore find this ground a persuasive one.

    (2)I have to weigh up the risk that an appeal may be rendered nugatory if a stay is not granted.  The Full Court in Aldridge said that this will be a substantial factor in determining whether it will be appropriate to grant a stay. 

    ·The Applicant is concerned that a release of the Affidavit will mean it is allowed to enter the public domain and may be published by the media.  She is further concerned that if this were to happen it cannot be done – that is, the situation is then irretrievable, regardless of the Full Court’s determination.

    ·Stays are granted in cases that involve some form of permanent or irreversible damage – for example, if the orders under appeal require the disclosure of confidential information or compliance with those orders would cause confidentiality to be irretrievably lost.  The circumstances of this matter are not dissimilar.

    ·The Respondent suggests that the Applicant’s argument is a mischief because the County Court has already considered the Respondent’s application for a closed court and the use of pseudonyms, and that the Applicant has resisted the Respondent’s applications.  Further, he says that both parties need to rely on the Affidavit in the proceedings. 

    ·I accept that the Respondent might be somewhat frustrated by the changing position of the Applicant on this issue.  However, I am more persuaded by the prejudice that would be suffered by the Applicant in the event that the Affidavit were released and the Full Court, only days later, finds me to be in error.

    (3)Aldridge also cited the principle that a stay may be granted on terms that are fair to all parties.  This may involve a Court weighing the balance of convenience and the competing rights of the parties. 

    ·I have also considered whether there would be a fair term to impose, such as a redaction of names.  Ultimately, however, this falls within the ambit of the appeal, and it is best left to the Full Court to determine.

34. Given that the Full Court is convening to hear the matter on Friday, I accept that a substantial injustice could arise if I were not to grant the stay for that 70 hour period. 

35. Accordingly, for those reasons, and bearing in mind the very short period of time until the appeal is heard and for the other reasons that are set out today, I will stay the orders made on 14 May 2021 and reserve costs. 

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Beckhouse.

Associate:

Dated:       26 May 2021