MARINO & BELLO & ANOR (No.3)

[2020] FCCA 2865

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARINO & BELLO & ANOR (No.3) [2020] FCCA 2865

Catchwords:
FAMILY LAW – Stay Application – circumstances in which a stay should be granted – whether the circumstances in this case are exceptional – whether failure to grant a stay would render the appeal nugatory – orders made – application refused.

Legislation:

Family Law Act 1975 (Cth), ss, 65C

Family Court Rules 2004 (Cth), r.22.11

Cases cited:

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

Mankiewicz and Anor & Swallow and Anor [2016] FamCAFC 153

Applicant: MR MARINO

First Respondent: MR BELLO

Second Respondent: MS BELLO

File Number: PAC 437 of 2020

Judgment of: Judge Humphreys

Hearing date: 9 October 2020

Date of Last Submission: 9 October 2020

Delivered at: Parramatta

Delivered on: 9 October 2020

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Ms Dart

ORDERS

1. The Stay Application for orders 1 and 2 of Orders dated 15 September 2020, is refused.

IT IS NOTED that publication of this judgment under the pseudonym Marino & Bello & Anor (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 437 of 2020

MR MARINO

Applicant

And

MR BELLO

First Respondent

MS BELLO

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

Introduction

1. This is judgment in the Application in a case in relation to Mr Marino (“the applicant”) and Mr Bello (“the first respondent”) and Ms Bello (“the second respondent”).

2. The applicant has made an Application in a Case for the staying of two orders that this Court made on 15 September 2020. Those orders were that the applicant’s application for parenting orders be summarily dismissed and that he pay $24,200.00 in costs.

3. The matter came before the Court, notwithstanding the fact the applicant sought that the matter be heard by a separate or a different judge. I ruled that pursuant to r 22.11(3) of the Family Court Rules 2004 (Cth), the Application for a Stay should be heard by the judge who granted the orders, unless that judicial officer was unavailable. As I am available, I have determined to hear the matter.

Background

1. The background is somewhat complicated in that the applicant sought parenting orders in respect of two children of the respondents. They are in an intact relationship and for reasons that I need not go into, they have chosen to exclude the applicant from the children’s lives.

2. In relation to the first hearing on 26 June 2020, which was that I make orders in relation to an application that I recuse myself from further hearing of the matter, I declined to make that order and directed that the matter be listed for hearing in relation to the summary dismissal application. That hearing took place on 15 September 2020. The Court granted orders that the application made by the applicant, be summarily dismissed.

3. In so doing, the Court was not satisfied that the applicant had proven standing, as the uncle of the children, to whom the parenting orders were sought, pursuant to s 65C(c) of the Family Law Act 1975 (Cth) (“the Act”). The Court was not satisfied that the applicant met the threshold test set out in Mankiewicz and Anor & Swallow and Anor [2016] FamCAFC 153 at [10].

4. In relation to the summary dismissal hearing, I note that the applicant did not appear at that hearing and indeed, in his written submissions, in relation to the Application for a Stay of proceedings, he acknowledges that he did not appear on the basis that:

   With respect I will not be attending the hearing under these circumstances as it would constitute a waiver of my application.

   The applicant’s application being that I recuse myself from the hearing.

5. In terms of the evidence before the Court, there is an Application in a case, an affidavit in support sworn on 2 October 2020 from the applicant and a further affidavit sworn on 17 August 2020 that annexes a considerable amount of information. The applicant has also provided written submissions.

6. Ms Dart, who appears for the respondents, has provided the Court some written submissions in response.

The Law

1. In terms of the relevant law regarding stay applications, in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 (“Aldridge”), per Bryant CJ, Boland Crisford JJ, the Full Court set out the principles in relation of the kind matter that is currently before the Court. The following was said at [18]:

   This is an appeal from the discretionary judgment. There are well-established principles on the limits of interference by an appellate court with such judgment (see House v R (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513).

   The Full Court then refers to House & The King [1936] HCA 40 and Gronow & Gronow [1979] HCA 63. They go on to say:

   The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are well known (see JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at [1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:

   ·the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;

   ·a person who has obtained a judgment is entitled to the benefit of that judgment;

   ·a person who has obtained a judgment is entitled to presume the judgment is correct;

   ·the mere filing of an appeal is insufficient to grant a stay;

   ·the bona fides of the applicant;

   ·a stay must 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;

   ·a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether or not it will be appropriate to grant a stay;

   ·some preliminary assessment of the strength of the proposed appeal – whether the applicant has an arguable case;

   ·the desirability of limiting the frequency of any change in a child’s living arrangements;

   ·the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and

   ·the best interests of the child the subject of the proceedings was significant consideration.

The Applicant’s Submissions

1. The applicant submits to the Court, in oral submissions, that the summary dismissal hearing should not have occurred and therefore the orders should not exist. The applicant again repeats the fact that there is a bias issue and as a result of that, no summary dismissal hearing should have taken place, until he had the opportunity of appealing the original decision in which I decided not to recuse myself from. The applicant submits the strength of the appeal is arguable. The applicant says that the costs order should not exist and it is an issue in other proceedings, in that there are apparently District Court proceedings in relation to other matters, involving tort which involve the applicant and the parties and the existence of the costs order is being used as a basis to seek an adjournment of those proceedings, until such a time as the current matter is dealt with by the Family Court on appeal.

The Respondents Submissions

1. Ms Dart, for the respondents, has quite properly conceded that the circumstances are such that it would be inappropriate to enforce any costs order pending determination of the appeal and she has provided both a written and an oral undertaking on behalf of the respondents, not to do so. Ms Dart also points out that an appeal in this matter is imminent, having been listed for hearing on 6 November 2020. Ms Dart says there is no basis upon which it can be apprehended, the appeals will be rendered nugatory if the stay were granted and indeed, the granting of a stay or otherwise would have no bearing on the appeal or the living arrangements for the subject children of the substantive proceedings.

Considerations

1. In considering the matter, I propose to go through the various points that are outlined above by the Full Court in Aldridge.

2. Firstly, in terms of the proper basis for the stay, the onus is on the applicant. Whilst it is true that the applicant need not demonstrate any special or exceptional circumstances, this is an unusual situation, whereby no orders have been made that impact on the affected children, nor is it likely that there would be, given the short period of time any basis for any changed arrangements which might exist. Therefore, in relation to the first order, it is not a matter which can have any impact in a practical sense, if a stay were granted. The Court notes, in relation to the second matter, that there has been a concession and an undertaking given that the respondents will not seek to enforce the cost orders, pending the outcome of the appeal in the Family Court.

3. I note that the respondents suggest that having obtained a judgment, they are entitled to the benefit of that judgment and presumably they are entitled to the benefit of that judgment in any collateral proceedings, which might also be in existence between the parties.

4. The respondents are also entitled to assume that the judgment is correct. The Court simply notes, in this regard, that the applicant has already conceded the fact that he did not attend the hearing and this matter was confined to a relatively short issue as to whether or not the applicant had proven standing, pursuant to s 65C(c) of the Act. The Court notes in this regard, that in the second judgment, the Court was not satisfied that this was the case, bearing in mind the applicant had not met the children for some considerable period of time, he had never met the first respondent and it was put to the Court that the respondents were entitled, as parents in an intact relationship, to choose who they have in the life of their children.

5. It was also put to the Court that it was not in the best interests of the children that they have interaction with their uncle, in circumstances where there was considerable disharmony between the parties.

6. The Court notes that the mere filing of an appeal is insufficient to grant a stay.

7. The bona fides of the applicant is a matter that the Court does take into account, in that there are allegations which the Court refers to in the original judgment that these proceedings are being used to cause harm and difficulty to the respondents, because of a family dispute that exists between the applicant and the respondents.

8. A stay must be granted on terms that are fair to all parties and the Court has got to balance the convenience and the competing rights of the parties. On the one hand, the Court has parents who are the subject of proceedings. Those proceedings have been determined and there is now an appeal. There is no real detriment that will be occasioned to the applicant, by refusing to grant a stay.

9. In terms of the other collateral proceedings, in the Court’s view, it goes back to the issue that the parties are entitled to presume the judgment is correct and to have the benefit of that judgment, until such a time as that judgment is overturned on appeal or indeed, affirmed. The Court also notes the undertaking not to pursue any costs, until after the appeal is heard.

10. In terms of a preliminary assessment of the strength of the proposed appeal and whether or not the applicant has got an arguable case, his written submissions and his material, pointed to a number of cases. The difficulty that the Court has is that the applicant admits not attending the proceedings because he says that to do so would be a waiver. That may well be a factor that the applicant says he is entitled to rely upon, but I the Court does not consider it to be a strong factor in whether or not the appeal will be granted.

11. The Court goes back to the original submissions that determined the applicant failed to prove standing, pursuant to s 65C(c) of the Act and the threshold test. That indeed, is the crux of the matter and in the Court’s view, the applicant may have some difficulty in the current circumstances of this case, in proving standing.

12. The Court notes that the period of time in which the appeal can be heard is very short and that it is listed on 6 November 2020. The current arrangements are satisfactory, in that there will be no detriment or harm to the children, who’s best interests the Court needs to take into account, as being a significant consideration.

13. The Court is then left with this, orders were made dismissing the appeal. In so doing, the Court found that the applicant did not have sufficient standing. The applicant seeks to appeal that matter and he seeks a stay, in relation to those matters.

14. Taking into account all of the issues above, the Court is not satisfied that it should grant a stay, in relation to order 1, being the dismissal of the application, which was the subject of the hearing on 15 September 2020. In the Court’s view, that matter is subject to an appeal, there are no practical difficulties occasioned to the applicant and he is not occasioning any detriment, as a result of those orders, in that he was not seeing the children prior to the hearing and he has not lost any rights.

15. For those reasons, bearing in mind the very short period of time until the appeal is heard and for the other reasons given above, the Court declines to grant a stay in relation to Order 1 of orders dated 15 September 2020.

16. In relation to Order 2 of orders dated 15 September 2020, the consideration is somewhat more finely balanced. On the one hand, the Court has made a costs order against the applicant. It appears that the existence of that costs order, is being used in collateral proceedings however, the fact is the respondents have obtained a judgment, they are entitled to the benefit of that judgment and they are entitled to presume that the judgment is correct. Unless and until that judgment is overturned, the costs order remains and the Court does not believe it is a proper basis for a stay, in that the existence of the costs order is a matter of some agitation in other proceedings. The Court is only concerned with the current proceedings.

17. In so doing, the Court notes that there is an undertaking from the respondents that they will not seek to enforce the costs order that has been made, until such a time as the appeal has been heard. In the Court’s view, bearing in mind the relative pros and cons and that it is a discretionary nature the Court does not see efficacy in staying order 2 and no practical reason to stay the order.

Conclusion

1. Accordingly, the Application for a Stay in relation to Orders 1 and 2 of orders dated 15 September 2020, is refused.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Associate:

Date: 20 October 2020