Lander and Bradbury - [2019] FamCA 164

FAMILY COURT OF AUSTRALIA

LANDER & BRADBURY

[2019] FamCA 164

FAMILY LAW – PRACTICE AND PROCEDURE – Stay Application – Bond.

Aldridge & Keaton [2009] FamCAFC 106
Sheldon & Weir (No. 4) [2010] FamCA 1214
Sheldon & Weir [2011] FamCA 2

APPLICANT:

Ms Lander

RESPONDENT:

Mr Bradbury

INDEPENDENT CHILDREN’S LAWYER:

No appearance

FILE NUMBER:

CAC

239

2017

DATE DELIVERED:

20 March 2019

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

20 March 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Self-representing

SOLICITOR FOR THE RESPONDENT:

Infinity Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Yeend & Co

Orders

The stay is refused.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lander & Bradbury has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 239 of 2017

Ms Lander

Applicant

And

Mr Bradbury

Respondent

EX TEMPORE REASONS FOR JUDGMENT

In this matter the Applicant Mother has, by an Application in a Case filed on 18 March 2019 and an affidavit filed on the same day, sought the stay of an order made following findings of contraventions made by her. The orders follow the contraventions being made on 14 March 2019 and require the Applicant to enter into a Bond on particular terms. The Applicant seeks a stay of the order that required her to forthwith enter into the Bond. I am told that she has not as yet entered into that Bond despite the requirement being that it be entered into forthwith.
At this stage the Applicant has not yet filed a Notice of Appeal. She says that she will file one by this coming Monday, which appears at face value to be within the designated appeal period.
Rule 22.11 enables a party to apply for an order staying the operation of orders, if an appeal has been started. The Applicant does not fall into that category and so to consider whether or not a stay should be given it will be necessary to dispense with compliance with Rule 22.11.
There is good reason at this stage to dispense with compliance with that Rule, noting the main purpose of the Rules at Rule 1.04 as it relates to the administration of justice and the effect that granting relief would have on each party and parties to other cases in the Court. It may be anticipated without being advised that it is the case, that if leave, or rather dispensation from the Rules, is not granted at this point that on the Applicant's filing of a Notice of Appeal she would then again file an Application for a stay as she would then be entitled to under Rule 22.11. If dispensation with the Rule is not given at this point it will cause the parties to return to the Court on another day to engage in essentially the same argument that has been engaged in to completion today. That result is not in the interests of the administration of justice and so I dispense with the operation of Rule 22.11 and thereby give the Applicant permission to seek a stay of the order that she enter into a Bond forthwith despite the fact that she has not as yet filed a Notice of Appeal.
The principles in relation to the granting of a stay have been set out in the case of Aldridge & Keaton [2009] FamCAFC 106, but also by Justice Ryan in Sheldon & Weir (No. 4) [2010] FamCA 1214. The principles are not controversial.
The onus to establish a proper basis for the stay is on the Applicant for a stay although it is not necessary for the Applicant to demonstrate special or exceptional circumstances. That is, in order for a stay to be granted it is necessary that a proper basis be established by the Applicant.
A person who has obtained a judgment is entitled to the benefit of the judgment. In this case that is an entitlement that rests upon the Respondent that he have the protection afforded to him by the Applicant entering into a Bond in accordance with the orders that I have previously made. It is also the case that a person who has obtained a judgment is entitled to presume the judgment is correct. I note that the mere filing of an appeal is insufficient to ground a stay.
It is necessary for the Applicant to establish the bona fides of her application.
I accept that Ms Lander’s application is made on a bona fide basis. She has signalled her intent for some time to appeal the contravention orders and, as best as I can tell, is pursuing the stay and the appeal as she believes that the decision is wrong, rather than pursuing it for some other or ulterior motive. I accept that she is bona fide in pursuing the matter.
I am also to consider the risk that an appeal may be rendered nugatory if the stay is not granted. It is noted that this is a substantial factor in determining whether or not it will be appropriate to grant a stay. The risk identified by the Applicant in the absence of a stay is that she may again be dealt with for a contravention of the orders of this Court. That circumstance would require that there has been a contravention. Process for a contravention can proceed with or without a stay. If successful on the contravention, then absent a stay the Applicant would also be dealt with for breach of a Bond.
I accept that there is a potential for further proceedings for contravention but I cannot conclude that it is likely that the subject matter of the appeal will be rendered nugatory if there is no stay.
There is to be a preliminary assessment of the strength of the proposed appeal. That exercise is to be dealt with as described by Justice Ryan in Sheldon & Weir [2011] FamCA 2 as a matter of judicial impression.
Perhaps the strongest matter advanced by the Applicant in relation to the merits of the appeal is a matter which, on its face, is potentially arguable, as to the meaning of the word “denigrate” which was pivotal in the determination as to whether or not there had been a contravention. The meaning of denigrate was a key issue at the contravention hearing. I accept that that matter is potentially arguable.
There is no information before me at the moment as to the likely time period before an Appeal Court is able to deal with these matters.
If a stay is granted the Father is not denuded of all protection. If the Mother is found to have contravened an order, even where a stay has been given in respect of the Bond such a contravention would be occurring in the face of an appeal regarding contraventions. That may speak itself to the necessary response to ensure compliance. It is too early to tell if that is the case.
If on the other hand a stay is not granted, on contravention the Mother faces more serious consequences than she might otherwise face, but that is only a circumstance that arises on the happening of another event. That is, the likelihood of that is contingent upon the finding that the Mother has contravened an order. It requires a further breach of the orders on her part following the entry into a Bond.
On balance, the matters do not justify a stay.
The Father is entitled to the added protection of the Bond and that entitlement is not displaced by the balance of considerations.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 20 March 2019

Associate:

Date: 22 March 2019