JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: K -v- B [2006] WASCA 100
CORAM: PULLIN JA
HEARD: 19 MAY 2006
DELIVERED : 19 MAY 2006
PUBLISHED : 7 JUNE 2006
FILE NO/S: CACV 147 of 2005
BETWEEN: K
Appellant
AND
B
Respondent
ON APPEAL FROM:
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram :PENNY J
Citation :B and K [2006] FCWA 25
Catchwords:
Family law - Practice and procedure - Parenting order - Whether stay should be granted
Legislation:
Family Court Act 1997 (WA), s 84, s 90
Family Law Rules, r 16.05(2)
Rules of the Supreme Court 1971 (WA), r 32(2)(h), r 44
Supreme Court (Court of Appeal) Rules 2005 (WA)
Result:
Application for stay dismissed
Application for extension of time to appeal granted
Category: B
Representation:
Counsel:
Appellant: Mr M D Cole
Respondent: Mr A F Dickey QC
Child: Ms J M Taylor
Solicitors:
Appellant: Terrace Law
Respondent: Shaddicks Lawyers
Child: Legal Aid Western Australia
Case(s) referred to in judgment(s):
B and K [2006] FCWA 25
BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining & Energy Union of Workers & Anor [2005] WASCA 138
Clemett, In the Marriage of (1980) 50 FLR 248
CSN v JBN (1998) 24 Fam LR 174
Eastland Technology Australia Pty Ltd v Whisson (2003) 28 WAR 308
Goldbay Corporation Pty Ltd v Apthorp [2006] WASCA 84
Re Evelyn (No 3) (1998) 23 Fam LR 73
Case(s) also cited:
Anzini and Anzini [2005] FCWA 114
Croney v Nand [1999] 2 Qd R 342
D & B v L [2004] WASCA 116
Horsford and Horsford [2002] FCWA 110
Manners and Bilchuris [2002] FCWA 45
Swinar and Swinar [2003] FCWA 76
Tweedie and Tweedie [2003] FCWA 30
Wheaton and Wheaton [2004] FCWA 149
PULLIN JA: The appellant is appealing from orders made by Penny J in the Family Court on 4 October 2005. These reasons concern an application to stay the orders. I dismissed the application when I heard it on 19 May 2006. These are the reasons for that decision.
The 11 orders appealed against include an order that:
"Until further order of the Court the child … born 21 June 1999 ('the child') reside with the Applicant [Respondent] from 6.00 pm Friday 7 October 2005, with the child to be collected by the Applicant at MacDonalds Restaurant, Cannington, and the Applicant have sole residential responsibility for the child together with all the powers necessary for the day to day care, welfare and development of the child."
Up until those orders were made, the child had resided with the appellant since birth.
Penny J set out the history of the matter, the law and the factors leading to her decision in B and K [2006] FCWA 25. I incorporate the paragraphs of that judgment by reference, as material relevant to the consideration of this stay application. Her Honour concluded at [60]…
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- AGLC
- K v B [2006] WASCA 100
- Case
- [2006] WASCA 100
- Decision Date
CaseChat Overview and Summary
The court examined the procedural history of the case and found that the appellant had made several attempts to comply with the procedural requirements for the appeal and stay application, but these efforts were delayed by the Court of Appeal Office. The court noted that the appellant was not solely responsible for the delay in bringing the matter on. The court also considered the relevant considerations for a stay application, including the principles set out in Eastland Technology Australia Pty Ltd v Whisson and BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining & Energy Union of Workers & Anor. The court further noted that in the context of Family Court orders concerning children, a stay of a parenting order pending an appeal is itself a parenting order.
Based on the evidence presented, the court found that the appeal was not instituted within the required time frame, and the appellant had not demonstrated any special circumstances that would justify an extension of time. The court also found that the respondent had a strong interest in the enforcement of the parenting order, and the delay in bringing the matter on had already caused significant disruption to the lives of the parties involved. Therefore, the court decided not to grant the stay application.
The court dismissed the appeal and denied the application for a stay. The court ordered that the parenting order remain in effect and be enforced as directed by the Family Court. The court also ordered that the costs of the appeal be borne by the appellant.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The appeal to this Court is made under s 211 of the Family Court Act 1997 (WA). That section provides that an appeal lies to the Court of Appeal from a decree of the Family Court made under its non‑federal jurisdiction, s 211(3). Section 211(5) provides that such an appeal be made in accordance with the Rules of the Supreme Court, which include the Supreme Court (Court of Appeal) Rules. Although the appeal is possibly an interlocutory decision, leave is not required. See Goldbay Corporation Pty Ltd v Apthorp [2006] WASCA 84. The appeal was not instituted within the time required. It appears that the appellant was probably confused about where the appeal had to be instituted. The application for a stay was filed on 24 November 2005, but at that time no reasons for decision were available. On 17 January 2006 an application to extend time in which to appeal was filed. These applications were referred to me by the Registry of this Court on 20 January 2006 and, on 23 January 2006, I directed that the appellant should be advised to write to the Associate to Justice Penny, advising that an appeal had been instituted, that a stay application had been filed and inquiring when reasons for decision were likely to be published, and that the appellant should file an affidavit deposing to the sending of the letter and any response received. I directed that if no response was received within seven days, the appellant should advise this Court and the application would then be listed with notice to the respondent. Unfortunately, it was not until 8 February 2006 that the Supervisor of the Court of Appeal Office wrote to Terrace Law, acting on behalf of the appellant, providing this information. On 2 March 2006, Terrace Law wrote to the Supervisor of this Court in the following terms:"Pursuant to your letter of 8 February 2006 we wrote to the Judge's Associate but have not received a response. In that respect we enclose affidavits sworn by the writer. We would be obliged if the application for leave to appeal out of time together with the stay application could now be listed for hearing." On 17 March Terrace Law wrote to the Supervisor advising that Justice Penny had delivered reasons for decision on 17 March 2006 and enclosing a copy. Terrace Law once again asked that the applications for a stay and an extension of time be listed for hearing. Again, there was regrettable delay on the part of the Supervisor of the Court of Appeal Office, because it was not until 19 April 2006 that he referred this material to me. At the time I was on leave. Upon my return, in the last week of April, I saw the material and directed that the matter be listed for hearing before me on 19 May and gave directions about the filing of submissions. That history reveals that most of the delay in bringing this matter on cannot be attributed to the appellant. The only delay which can be attributed to the appellant was the initial delay in instituting the appeal. The application for a stay is made under r 44 of the Supreme Court (Court of Appeal) Rules 2005. Under those rules, a stay of execution of a primary court's judgment is an interim order which is one of a class of orders a party may apply for before the resolution of an appeal. A single Judge of the Court of Appeal has jurisdiction to deal with and decide the application for a stay under r 43(2)(h). There are no special provisions specifying the considerations relevant to a stay application. In relation to civil matters, the relevant considerations are set out in Eastland Technology Australia Pty Ltd v Whisson (2003) 28 WAR 308 and BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining & Energy Union of Workers & Anor [2005] WASCA 138. However, while the considerations set out in those cases will be relevant to this stay application, it is also important to bear in mind that in relation to orders concerning children in the Family Court, an order for a stay in operation of a parenting order pending an appeal, is itself a parenting order for it suspends an existing parenting order. See Re Evelyn (No 3) (1998) 23 Fam LR 73 at [68]. A parenting order is defined in s 84 of the Family Court Act 1997.